Criminal Procedure Code Notes

CRIMINAL
PROCEDURE
CODE
Notes for Competitive Exams
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Criminal Procedure Code, 1973
The Code of Criminal Procedure. 1973 is the procedural law providing the machinery for
punishment of offenders under the substantive criminal law, be it the Indian Penal Code, 1860 or
any other penal statute.
The Cr.P.C. contains elaborate details about the procedure to be followed in every investigation,
inquiry and trial, for every offence under the Indian Penal Code or under any other law. It divides
the procedure to be followed for administration of criminal justice into three stages: namely
investigation, inquiry and trial.
There was at first no uniform law of criminal procedure for the whole of India. It was the Criminal
Procedure Code of 1882 which gave for the first time such a uniform law of procedure; it was
supplanted by the Code of 1898. The latter Code remained unchanged for a very long period;
though it was amended in 1923 and 1955. The Law Commission studied the old Code and made
various recommendations/ suggestions in its detailed report (41st) submitted in Sept. 1969. These
suggestions were incorporated in the Code of 1973, which came into force on 1st April, 1974.)
The law of criminal procedure is intended to provide a mechanism for the enforcement of
substantive criminal law (i.e. Penal Code). The law of criminal procedure is meant to be
complementary to criminal law; it creates the necessary machinery for the detection of crime,
arrest of suspected criminals, collection of evidence, determination of guilt or innocence of the
suspected person, and the imposition of proper punishment on the guilty person. Thus in the
absence of an enforcement machinery the threat of punishment under substantive law would
appear empty.
It further attempts to strike a just balance between the need to give discretionary powers to the
functionaries under the Code to make the investigative and adjudicatory processes strong and
effective and the need for controlling the probable misuse/abuse of these powers. The Supreme
Court has said: "It is the procedure that spells much of the difference between the rule of law and
the rule of whim and caprice" [Iqbal Ismail Sodawala v State of Maharashtra (1975) 3 SCC 140). The
law of criminal procedure aims at providing safeguards against possible harms and violation of
human rights of innocent persons.
It has been rightly said that too much expense, delay and uncertainty (flaws and loopholes) in
applying the law of criminal procedure would render even the best of penal laws useless and
oppressive. It may be noted that the procedural code is not wholly procedural or adjective in
nature. There are certain provisions of the Code which partake of the nature of substantive law e.g.
prevention of offences, maintenance proceedings, etc. The Code confers the right of maintenance",
"right of habeas corpus', 'right of appeal', etc.
While drafting the Code, three basic considerations (viz. fair trial, avoidance of delay in
investigation/trial, and, fair deal to the poorer sections) have been kept in mind. While the general
purpose of criminal procedure is to provide a mechanism for the administration of criminal law, its
core object is "to ensure for the accused a full and fair trial in accordance with the principles of
natural justice." The review procedure and the bail provisions are also quite important.
The Code of Criminal Procedure (Amendment) Act, 2008

Statement of Objects and Reasons - The need to amend the Code of Criminal Procedure, 1973 to
ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite
some time. The Law Commission in its 154th report have made appropriate recommendations in
this regard viz. provisions concerning arrest, custody and remand, procedure for summons and
warrant-cases, compounding of offences, victimology, special protection in respect of women and
inquiry and trial of persons of unsound mind. Also, as per the Law Commission's 177th report
relating to arrest, it has been found necessary to revise the law to maintain a balance between the
liberty of the citizens and the society's interest in maintenance of peace as well as law and order.
The need has also been felt to include measures for preventing the growing tendency of witnesses
being induced or threatened to turn hostile by the accused parties who are influential, rich and
powerful. At present, victims are the worst sufferers in a crime and they don't have much role in the
Court proceedings. They need to be given certain rights and compensation, so that there is no
distortion of the criminal justice system. The application of technology in investigation, inquiry and
trial is expected to reduce delays, help in gathering credible evidences, minimize the risk of escape
of the remand prisoners during transit and also facilitate utilization of police personnel for other
duties. There is an urgent need to provide relief to women, particularly victims of sexual offences,
and provide fair-trial to persons of unsound mind who are not able to defend themselves.
The Criminal Law (Amendment) Act, 2013
The Criminal Law (Amendment) Bill, 2012 was introduced in the Lok Sabha on 4th December, 2012
in order to provide for stringent punishment for 'crimes against women', as also to provide for
more victim friendly procedures in the trials of such cases. After the horrendous incident of gang
rape, which occurred on 16th December, 2012 in Delhi, a Committee, headed by Justice J.S. Verma
was set up to make recommendations of the department on amending the various laws to provide
for speedy the Department justice and enhanced punishment for offenders in cases of sexual assault
of extreme nature. Keeping in view the recommendations related Parliamentary Standing
Committee on Home Affairs, the recommendations of Justice Verma Committee and the views and
comments received from various quarters including women groups, the Government have drafted
the Criminal Law (Amendment) Bill, 2013.
The Criminal Law (Amendment) Bill, 2103 seeks to amend the Indian Penal Code, 1860, the
Criminal Procedure Code, 1973, the Indian Evidence Act, 1872 and the Protection of Children from
Sexual Offences Act, 2012. These amendments seek to:
(a) make specific provisions for punishment for the offences of causing grievous hurt by acid attack
and also for an attempt thereof; (b) define and prescribe punishment for the offences of stalking.
voyeurism and sexual harassment;
(c) widen the definition of rape; broaden the ambit of aggravated rape; and enhance the
punishment thereof;
(d) prescribe for punishment extending to the sentence of death, for an offence where in the course
of commission of an offence of rape, the offender inflicts any injury which causes the death of the
victim or causes the victim to be in a persistent vegetative state; (e) punish the repeat offenders of
rape with imprisonment for life (which shall mean the remainder of the person's natural life), or
with death;
(f) prescribe that those convicted for the offence of gang rape shall be punished with rigorous
imprisonment for a minimum of twenty years extendable to life (which shall mean the remainder of
that person's natural life) and fine to be paid to the victim to meet the medical expenses;
(g) enhance punishment under sections 354 and 509 of Indian Penal Code: (h) amend sections 54-
A, 154, 160, 161, 164, 198-B, 273, 309 and 327 of the Code of Criminal Procedure, 1973 for
providing for women friendly procedures; greater sensitivity to the requirement of physically and
mentally disabled persons, under-aged children and old persons in the course of investigation and
trial; for speedy trial of rape cases, and better recording of evidence; (i) provide that all hospitals
shall immediately provide first aid and/or medical treatment, free of cost, to the victims of acid
attack or rape; and provide for punishment for contravention thereof;
(i) provide that the compensation payable by the State shall be in addition to the payment of fine to
the victim;
(k) amend the Indian Evidence Act, 1872 by way of inserting sections 53A, 114A, substitution of
section 119 and amendment of section 146 to protect the dignity of women;
(l) amend the Protection of Children from Sexual Offences Act, 2012 so as to harmonise the said Act
with the provisions of the Bill.
Classes of Criminal Courts
Besides the High Courts and the courts constituted under any law, other than this Code (viz.
Juvenile Courts, Nyaya Panchayats, Special Courts or Court of a Special Judge), there shall be, in
every State, the following classes of criminal courts, namely:
(I) Courts of Session;
(ii) Judicial Magistrate of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
For proper separation of the judiciary from the executive, the Code has contemplated two
categories of magistrates - judicial and executive.
Definitions (Sec. 2)
Bailable/Non-bailable Offences
A bailable offence is one which is shown as bailable in the First Schedule to the Code, or which is
made bailable by any other law for the time being in force. A non-bailable offence means any other
offence [Sec. 2(a)]. When a person is granted bail, he is released from restraint (legal custody). In
the case of a bailable offence, bail can be claimed as a matter of right; it is granted as a matter of
course by the police officer/court. Non bailable offence does not mean that bail can in no case be
granted. It only means that bail can be granted in the discretion of the court.
The Code does not lay down any criterion on which it bases the classification of bailable and non-
bailable offences. However, this classification may be explained on the basis bailable offences are,
generally speaking. less grave and serious than those which are non-bailable. According to the First
Schedule to the Code, offences under laws other than the Indian Penal Code which are punishable
with imprisonment for 3 years or more, have been considered as "non-bailable" offences; other
offences which are punishable with less than 3 years' imprisonment or with fine only are
considered as "bailable" offences. Of course, this rule is subject to any rule to the contrary made in
any such law.
Some of the bailable offences are: being a member of an unlawful assembly, bribery, committing
affray, giving false evidence, etc. The cluster of bailable offences can be conceived as an island
surrounded by an ocean of non-bailable offences. The former can be analyzed, but not the latter.
The former are fixed and certain, the latter form the residue.
Public Prosecutors
A public prosecutor' is the counsel for the State in criminal trials. He stands for the State in whose
name all prosecutions are conducted. All offences affect the public as well as the individual injured,
and in all prosecutions the State is the prosecutor. A public prosecutor should not appear on behalf
of the accused. Further, his duty is to represent not the police but the State. However, he can give
advice to the police or other Government Departments with regard to the prosecution of any
person if his advice is so sought.
The object of a criminal trial is to find out the truth and to determine the guilt or innocence of the
accused. The duty of the prosecutor in such a trial is not merely to secure conviction at all costs but
to place before the court whatever evidence is possessed by the prosecutor, whether it be in favour
of or against the accused, and to leave the court to decide upon all such evidence. There should not
be on the part of the prosecutor "any unseemly eagerness for or grasping at conviction" [A. W.
Chandekar, AIR 1924 Nag 243]. His only object should be to aid the court in discovering truth. Thus,
in the machinery of justice he has to play a very responsible role; the impartiality of his conduct is
as vital as the impartiality of the court itself [Mohd. Mumtaz v Nandini Satpathy (1987) 1 SCC 279].
(h) Investigation
'Investigation' includes all the proceedings under this Code for the collection of evidence conducted
by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in
this behalf [Sec. 2(h)].
The definition of the term is not exhaustive. An "investigation" means search for material and facts
in order to find out whether or not an offence has been committed. The arrest and detention of a
person for the purpose of investigation of a crime forms an integral part of the process of
investigation [Baldev Singh, 1975 CrLJ 1662 (Punj) (F.B.)]. Similarly, examining witnesses and
arranging raids for the purpose of dealing with a complaint. The word "investigation" has to be read
and understood in the light of not only the powers conferred on police officers but also the
restrictions placed on them in the use and exercise of such powers [Asst. Collector of C.E.C.
Preventive v V. Krishnamurthy, 1983 CrLJ 1880])
Investigation, Inquiry and Trial
The three terms denote three different stages of a criminal case. The first stage is reached when a
police officer either by himself or under orders of a Magistrate investigates into a case. If he finds
that no offence has been committed he reports the fact to a Magistrate who drops the proceedings.
But if he is of a contrary opinion, he sends up the case to a Magistrate. Then begins the second stage,
which is an inquiry into the case by Magistrate. If no prima facie case is made out, the Magistrate
dismisses the complaint or discharges the accused. If he is of a contrary opinion, he frames a charge.
The third and final stage is reached when the charge is framed and the trial begins. The Magistrate
may deal with the case himself, and either convict the accused, or acquit him. In cases of serious
offences, the trial is before the Sessions Court.
(i) Judicial Proceeding
Judicial proceeding' includes any proceeding in the course of which evidence is or may be legally
taken on oath [Sec. 2(i)].
The term includes inquiry and trial, but not investigation. However, under Sec. 202, an
inquiry/investigation may be ordered and such inquiry/ investigation is a part of judicial
proceeding. An inquiry is judicial, if its object is to determine the jural relation between one person
and another, or a group of persons, or between him and the community in general. An inquiry about
which no discretion is to be used and no judgment is to be formed, but something is to be done as a
matter of duty, is not a judicial but an administrative inquiry. Thus, proceedings before a Collector
under the Land Acquisition Act are not judicial proceedings.
The following have been held to be judicial proceedings:
(i) Maintenance proceedings.
(ii) An inquiry by a Magistrate, before issuing an order under Sec. 144.
(iii) Proceedings in execution of a decree.
(iv) A preliminary inquiry under Sec. 340.
The following have been held not to be judicial proceedings:
(i) An examination by a police officer under Sec. 161.
(ii) An order of the Government sanctioning a prosecution under Secs. 196-197.
(iii) Inquiries made by a Chief Judicial Magistrate on receipt of information that a grave crime was
about to be committed.
(iv) Departmental inquiries.
Initiation of Criminal Cases

In the scheme of the Code of Criminal Procedure, 1973, for the purposes of setting criminal
investigating agency into motion, offences are classified into two categories: (i) cognizable offences
and (ii) non-cognizable offences. In case of cognizable offences, a police officer can arrest an
accused without a warrant, but in the case of non-cognizable offences he cannot arrest and
investigate into such an offence without authorisation in this behalf by the Magistrate.
Cognizable/Non-Cognizable Offences
A cognizable offence means an offence for which and cognizable case means a case in which a police
officer may, in accordance with the First Schedule of the Code or under any other law, arrest
without warrant [Sec 2(c)]. A non-cognizable offence means an offence for which a police officer
has no authority to arrest without warrant [Sec. 2(1)].
Cognizable Offences
1. All serious offences are considered as cognizable.
2. Offences under the laws other than the Indian Penal Code which are punishable with
imprisonment for 3 years or more have been shown in the First Schedule of the Code as cognizable.
3. Some of the examples of 'cognizable' offences are:
• Waging war against the Government;

• Murder;
• Culpable homicide not amounting to murder;
• Dowry death;
• Theft;
• Extortion; etc.
4. In it, a police officer may, in accordance the First Schedule of the Code or under any other law,
arrest without warrant.
5. A police officer is under a legal duty to investigate without any orders/directions from a
Magistrate.
6. The cognizable offences are considered public wrongs and therefore the prosecution of the
offender is left to the initiative and efforts of the State.
Non-Cognizable Offences
1. Non-cognizable offences are more trivial and less serious than cognizable ones.
2. Those punishable with less than 3 years or with fine have been shown as non-cognizable
3. Some of the examples of 'non cognizable' offences are:
• Absconding to avoid service of summons;

• giving false information to a public servant,
• mischief,
• falsification of accounts; etc.
4. A police officer has no authority to arrest without warrant.
5. A police officer has neither the duty nor the power to investigate into such offence without the
authority given by a Judicial Magistrate.
6. The non-cognizable offences are considered more in the nature of private wrongs and therefore
the prosecution of the offender is left to the initiative and efforts of private citizens.
Complaint
Complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking
action under this Code, that some person (whether known or unknown) has committed an offence,
but does not include a police report. But, if a report is made by a police officer in a case which
discloses (after investigation) the commission of a non-cognizable offence, the same is deemed to
be a complaint, and the police officer the complainant [Sec. 2(d)].
The word 'complaint' has a very wide meaning; no particular form is prescribed. There is no
particular format for a complaint. Nomenclature is also inconsequential. A petition addressed to the
Magistrate containing an allegation that an offence has been committed, and ending with a prayer
that the culprits be suitably dealt with, is a complaint [Mohd. Yousuf v Afaq Jahan (2006) 1 SCC
627].
Distinction between Complaint and First Information Report (FIR)
Complaint
1. In complaint, the allegation is made orally or in writing to a Magistrate.
2. A complaint may relate to a cognizable or non-cognizable offence.
3. A Magistrate takes cognizance of an offence on a complaint made to him.
4. A complaint generally does not include the report of a police officer.
F.I.R. (First Information Report)
1. FIR is given to an officer in charge of a police station. 2. FIR must relate to a cognizable offence on
the face of it.
3. A Magistrate cannot take cognizance of an offence on first information.
4. FIR may be given by a police officer.

(Sec. 154. First Information Report (F.I.R.)
Sec. 154 deals with what is commonly known as a First Information Report (F.I.R) i.e. the first
information of a cognizable crime to the police. A 'first information report' means the information,
by whomsoever given, to the officer in charge of a police station in relation to the commission of a
cognizable offence and which is first in point of time and on the strength of which the investigation
into that offence is commenced. Every person has a duty (though not legal) to inform and assist the
police. A statement recorded after the commencement of investigation is not a F.I.R.
When any information disclosing a cognizable offence laid before the officer-in-charge of a police
station, he has no option but to register the case on the basis thereof [Satish Kumar Goel v State,
2000 CrLJ 2176 (Del)]. The police cannot refuse to register the case on the ground that it is either
not reliable or credible [Gurmito v State, 1996 CrLJ 1254 (P & H)].
A police officer is legally bound to record in writing every information relating to the commission of
a cognizable offence alleged to be committed within his jurisdiction. However, it has been held that
any lack of territorial jurisdiction should not prevent the police officer from recording information
about the cognizable offence and forwarding the same to the police station having jurisdiction over
the area in which the crime was said to have been committed² [State of A.P. v Punati Ramube, 1993
Cr LJ 3684 (SC)]. Such F.I.R. is called 'Zero F.I.R."
According to Sec. 154:
(1) If the information is given in writing, or
(2) If reduced to writing (when information is given orally to the officer in charge of the police
station and he reduces it to writing), the writing shall be signed by the informant.
(3) The information as taken down in writing shall be read over to the informant.
(4) The substance of the information shall then be entered by the police officer in a book called
'Station Diary' [Sec. 154(1)].
[2013 Amendment: In Sec. 154(1), the following provisos shall be inserted, namely: "Provided that
if the information is given by the woman against whom an offence under Secs.
326A/326B/354/354A/ 354B/354C/354D/376/376A/376B/376C/376D/376E or Sec. 509 of the
Indian Penal Code is alleged to have been committed or attempted, then such information shall be
recorded, by a woman police officer or any woman officer:
Provided further that:
(a) in the event that the person against whom an offence under Secs.
354/354A/354B/354C/354D/376/376A/376B/ 376C/376D/376E or Sec. 509 of the Indian Penal
Code is alleged to have been committed or attempted, is temporarily or permanently mentally or
physically disabled, then such information shall be recorded by a police officer, at the residence of
the person seeking to report such offence or at a convenient place of such person's choice, in the
presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;

(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under
clause (a) of sub-sec. (5A) of Sec. 164 as soon as possible."]
(5) A copy of the information as recorded above shall be given free of cost to the informant [Sec.
154(2)].
(6) If the officer-in-charge refuses to record the information, any person aggrieved by such refusal
may send in writing and by post, the substance of such information to the Superintendent of Police
concerned. If he is satisfied that such information discloses the commission of a cognizable offence,
he shall either investigate the case himself or direct an investigation to be made by a subordinate
officer [Sec. 154(3)].
Sec. 154 has a three-fold object, namely:
(I.) To inform the Magistrate and the District S.P. who are responsible for the peace and safety of
the district, of the offences reported at the police station;
(ii) To make known to the judicial officers before whom the case is ultimately tried, what are the
facts given out immediately after the occurrence and on what materials the investigation
commenced; and
(iii) To safeguard the accused against subsequent variations or additions.
The principal object of the F.I.R 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
alleged criminal activity so as to be able to take suitable steps to trace and bring to book the guilty.
A Judicial Magistrate having jurisdiction over the concerned Police Station can also direct for
registration of F.I.R. under Sec. 156(3) Cr. P.C. upon a complaint made to it in writing.
When a Statement Amounts to F.I.R.?
The question whether a statement is F.I.R. or is one made after the receipt of F.I.R. assumes
importance. It has been held that first information is that information which is given to the police
first in point of time (on the basis of which the investigation has been commenced) and not that
which the police may select and record as first information [Bhutnath, 7 CWN 345]. When a person
reported to the police officer that he had seen a certain woman with her throat cut, and the officer
had not made a record of that fact, but subsequently treated an information lodged by the woman's
father as first information in the case, held that the unrecorded information was in fact the first
information, and not that given by the woman's father [Patil Subba Reddy, 37 CrLJ 357].
However, any sort of information given first in point of time is not necessarily first information
within Sec. 154. It is necessary that such information must relate to a cognizable offence on the face
of it, and not merely in the light of subsequent events. In a case, a person first made a statement that
"a certain woman named S had left her house last night with ornaments on her person." The next
day he made another statement that "S was sought to be located, but could not be found."
Investigations began; the day after, he made another statement "as S has not yet returned, I suspect
that M and L had taken her somewhere, and she might have been killed by them for the sake of her
ornaments". Held that it was really this third statement which amounted to first information,
because it related to the commission of a cognizable offence [Moni Mohan, 35 CWN 623].
Sec. 154 does not necessarily contemplate that only one information. of a crime should be recorded
as F.I.R., but all information given to the police before investigation is started, may amount to first
information. Therefore, information lodged at two different police stations regarding the same
offence would both be admissible in evidence. However, there is a trend of court's acceptance of
F.I.R. as statements which give circumstances of the crime with a view that the police officer might
proceed to investigate [Jagdish v State, 1992 CrLJ 981 (M.P.)]. In this view the Supreme Court
accepted as F.I.R. a statement which the police officer recorded on the next day of occurrence
though he visited the place on the day of occurrence itself [Pattad Amarappa v State of Karnataka,
1989 CrLJ 2167].
If any oral information relating to the commission of a cognizable offence is given to the police
officer, but the same is not recorded and the police officer proceeds to the scene of the offence and
there records statements of witnesses, none of such statements would amount to F.I.R. Because in
such a case the real F.I.R. is the unrecorded oral information given to the police officer by the
informant [S. V. Madar v State of Mysore (1980) 1 SCC 479].
The following points may be noted about a F.I.R.:
(1) It should be information of fact disclosing the commission of a cognizable offence.
(2) It should not be vague or indefinite. If the allegations made in the F.I.R. are taken at their face
value and accepted in their entirety do not constitute an offence, the criminal proceedings
instituted on the basis of such F.I.R. should be quashed' [State of U.P. v R.K. Srivastava (1989) 4 SCC
59].
(3) It may be given by anybody; the injured should not always be the first informant.
(4) It is not necessary that the offender or the witnesses should be named.
The following do not come within the purview of a F.I.R., namely:
(1) A statement given to the police after investigation have commenced.
(2) A statement made by a witness during investigation.
(3) A statement recorded by an officer-in-charge on the basis of his personal knowledge after the
original information was received.
(4) A report by a police officer informing his superior that he had been told of the possible
commission of a dacoity at some time in the future. In Jagdish v State [1992 CrLJ 981 (M.P.)], held
that where the message is transmitted between the police officers inter se, such message can be
said to be F.I.R. only if its object was to narrate the circumstances of the crime with a view initiating
the investigation therein.
(5) A complaint made orally or in writing to a Magistrate.

LALITA KUMARI V GOVT. OF U.P. [2008 (11) SCALE 154]
In this case, the Apex Court noted that in large number of cases investigations do not commence
even after registration of FIRs and in case like the present one, steps are not taken for recovery of
the kidnapped person or apprehending the accused person with reasonable despatch. In fact, it was
alleged that the concerned S.H.O. pressurised the complainant to withdraw the complaint.
The Court noted: Experience shows that even after orders are passed by the concerned courts for
registration of the case, the police does not take the necessary steps and when matters are brought
to the notice of the Inspecting Judges of the High Court during the course of inspection and
Superintendence of Police are taken to task, then only FIRs are registered. At times, it has been
found that when harsh orders are passed by the Judges, the police become hostile to them.
On the other hand, there are innumerable cases that where the complainant is a practical person,
FIRS are registered immediately, copies thereof are made over to the complainant on the same day,
investigation proceeds swiftly, immediate steps are taken for apprehending the accused and
recovery of the kidnapped persons and the properties which were subject matter of theft or
dacoity.
In view of the above, we feel that it is high time to give directions to the Government of all the States
and UTS and Director Generals of Police/Commissioners of Police to the effect that if steps are not
taken for registration of FIRs immediately and the copies thereof are not handed over to the
complainants, they may move the Magistrates concerned by filing complaint petitions for
appropriate direction(s) to the police to register the case immediately and for apprehending the
accused persons, failing which, contempt proceedings must be initiated against such delinquent
police officers if no sufficient cause is shown.
In this case, the Supreme Court noted: By Order dated 14th July, 2008, we issued notices to the
Chief Secretaries of all the States and UTS and Director Generals of Police/Commissioners of Police
to show cause as to why the directions enumerated therein be not given by this Court. It is pathetic
that only two States (U.P. and Arunachal Pradesh) have responded. It is unfortunate that neither the
Director Generals of Police/Commissioners of Police, nor the Superintendents of Police has taken
any steps by giving suitable directions to the officers in-charge of the police stations.
In view of this we direct the Chief Secretaries of all the States and UTS and Director Generals of
Police/Commissioners of Police, to see that the police officers posted in every police station
throughout the country should act in accordance with the Order dated 14th July, 2008, treating the
proposed directions therein to be the interim ones and, in case there is any failure on the police
officer's part, the concerned authority shall take immediate action against the officer.
The Court further noted: Let Order dated 14th July, 2008 and this Order be put on the website of
the Supreme Court of India so that the people of India may know what directions have been given
by this Court and they may take appropriate steps in case of any inaction on the officer's part in
instituting a case and the Chief Judicial Magistrate/Chief Metropolitan Magistrate shall take action
in a case of inaction upon filing of complaint petition and give direction to institute the case within
the time directed in the said Order failing which the Magistrate shall not only initiate action against
the delinquent police officer but punish them suitably by sending them to jail, in case the cause
shown is found to be unsatisfactory. Apart from this, the Magistrate shall report the matter to the
disciplinary authority at once by fax as well upon receipt of which the disciplinary authority shall
suspend the concerned police officer immediately in contemplation of departmental proceeding.
[The registration of FIR either on the basis of the information furnished by the informant under Sec.
154(1) of the Code or otherwise under Sec. 157(1) of the Code is obligatory. The obligation to
register FIR has inherent advantages:
(a) It is the first step to 'access to justice' for a victim especially, the poor in rural and remote areas
of the country.
(b) It upholds the 'Rule of Law' inasmuch as the ordinary person brings forth the commission of a
cognizable crime in the knowledge of the State.
(c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases,
it only effectuates the regime of law.
(d) It leads to less manipulation in criminal cases and lessens incidents of 'ante-dates' FIR or
deliberately delayed FIR.
The important issue which arises for consideration in the referred matter is whether "a police
officer is bound to register a First Information Report (FIR) upon receiving any information relating
to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973
or the police officer has the power to conduct a "preliminary inquiry" in order to test the veracity of
such information before registering the same?"
The present writ petition, under Article 32 of the Constitution, has been filed by one Lalita Kumari
(minor) through her father, viz. Shri Bhola Kamat for the issuance of a writ of Habeas Corpus or
direction(s) of like nature against the respondents herein for the protection of his minor daughter
who has been kidnapped. The grievance in the said writ petition is that on 11.05.2008, a written
report was submitted by the petitioner before the officer in-charge of the police station concerned
who did not take any action on the same. Thereafter, when the Superintendent of Police was moved,
an FIR was registered. According to the petitioner, even thereafter, steps were not taken either for
apprehending the accused or for the recovery of the minor girl child.
A two-Judge Bench of this Court in, Lalita Kumari v Govt. of U.P. (2008) 7 SCC 164, after noticing the
disparity in registration of FIRs by police officers on case to case basis across the country, issued
notice to the Union of India, the Chief Secretaries of all the States and UTS and Director Generals of
Police/Commissioners of Police to the effect that if steps are not taken for registration of FIRS
immediately and the copies thereof are not handed over to the complainants, they may move the
Magistrates concerned by filing complaint petitions for appropriate direction(s) to the police to
register the case immediately and for apprehending the accused persons, failing which, contempt
proceedings must be initiated against such delinquent police officers if no sufficient cause is
shown.
Pursuant to the above directions, when the matter was heard by the very same Bench in Lalita
Kumari v Govt. of U.P. (2008) 14 SCC 337, learned counsel for the petitioner, projected his claim
that upon receipt of information by a police officer in-charge of a police station disclosing a
cognizable offence, it is imperative for him to register a case under Sec. 154 of the Code and placed
reliance upon two-Judge Bench decisions of this Court in State of Haryana v Bhajan Lal 1992 Supp.
(1) SCC 335, Ramesh Kumari v State (NCT of Delhi) (2006) 2 SCC 677 and Parkash Singh Badal v
State of Punjab (2007) I SCC 1. On the other hand, learned counsel for the State of Maharashtra
submitted that an officer in-charge of a police station is not obliged under law, upon receipt of
information disclosing commission of a cognizable offence, to register a case rather the discretion
lies with him, in appropriate cases, to hold some sort of preliminary inquiry in relation to the
veracity or otherwise of the accusations made in the report. In support of his submission, he placed
reliance upon two-Judge Bench decisions of this Court in P. Sirajuddin v State of Madras (1970) I
SCC 595, Sevi v State of T.N. 1981 Supp SCC 43, and Rajinder Singh Katoch v Chandigarh Admn.
(2007) 10 SCC 69.. In view of the conflicting decisions of this Court on the issue, the said bench, vide
order dated 16.09.2008, referred the same to a larger bench. The issues before the Constitution
Bench of this Court arise out of two main conflicting areas of concern, viz.
(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police
which affects the right of the victim/complainant to have a complaint immediately investigated
upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of
a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an
accused.
Historical experience has thrown up cases from both the sides where the grievance of the
victim/informant of non-registration of valid FIRs as well as that of the accused of being
unnecessarily harassed and investigated upon false charges have been found to be correct.
The underpinnings of compulsory registration of FIR is not only to ensure transparency in the
criminal justice delivery system but also to ensure judicial oversight.' The number of FIRs not
registered is approximately equivalent to the number of FIRS actually registered. Sec. 157(1)
deploys the word 'forthwith'. Thus, any information received under Sec. 154(1) or otherwise has to
be duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable
offence is not only brought to the knowledge of the investigating agency but also to the subordinate
judiciary.
Information in respect of Non – Cognizable offences (Sec. 155)
Sec. 154 deals with information relating to a cognizable offence. Sec. 155 deals with information
relating to a non-cognizable offence. When information is given to an officer-in-charge of a police
station about the commission of a non-cognizable offence, he must enter the substance of the
information in a book to be kept in the prescribed form, and refer the informant to the Magistrate
[Sec. 155(1)]. The book is the "station diary" or "general diary".
Non-cognizable offences are more or less considered as private criminal wrongs; the Code therefore
enjoins that a police officer shall not investigate a non-cognizable case without the order of a
competent Magistrate [Sec. 155(2)]. Once an order is given by the Magistrate, the police officer
receiving the order may exercise the same powers in respect of the investigation (except the power
to arrest without warrant) as an officer-in-charge of a police station may exercise in a cognizable
case [Sec. 155(3)]. There is no section empowering a police officer to make a report in such a case
without the orders of a Magistrate. The Magistrate must before ordering for investigation see
whether there are reasonable grounds for believing that the offence as complained has been
committed [Biroo v State AIR 1960 All 509].
Where a case relates to two or more offences of which at least one: is cognizable, the case shall be
deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable [Sec.
155(4)]. Thus, while investigating a cognizable offence and submitting charge-sheet for the same,
the police is not debarred from investigating any non-cognizable offence arising out of the same
facts and including them in their final report 11851. [Pravin Chandra v State of A.P. AIR 1965 SC
1185].
STATE OF ORISSA v SHARAT CHANDRA SAHU [(1996) 6 SCC 435]
([Sec. 155(4) lays down that where a case relates to two or more offences of which at least one is
cognizable, the case shall be deemed to be a cognizable case and police officer can investigate into
it.]
In this case, a case was filed by a wife against her husband alleging offences under Secs. 494
(bigamy) and 498-A (Cruelty by husband or his relatives), Indian Penal Code. While the offence
under Sec. 494 is non-cognizable, that under Sec. 498-A is cognizable. The High Court quashed the
charge under Sec. 494, IPC but the charge under Sec. 498-A was maintained. The Supreme Court
held that the judgment of the High Court so far it relates to the quashing of the charge under Sec.
494, IPC is wholly erroneous and is based on complete ignorance of the relevant statutory
provisions.
It was held: Sec. 155, Cr.P.C. provides that no police officer shall investigate a non-cognizable case
without an order of a competent Magistrate having power to try such case or commit it for trial.
Sub-sec. (4) lays down that where a case relates to two or more offences of which at least one is
cognizable, the case shall be deemed to be a cognizable case and police officer can investigate into it
without an order from the Magistrate. Thus, a case alleging commission of offences under Secs. 494
and 498-A, IPC could be investigated by the police, though offence under Sec. 494 is non cognizable.
The court observed: Sec. 155(4) creates a legal fiction and provides that although a case may
comprise of several offences. (cognizable as well as non-cognizable), it would not be open to the
police to investigate the cognizable offences only and omit the non-cognizable offences. Since the
whole case (comprising of cognizable as well as non-cognizable offences) is to be treated as
cognizable, the police had no option but to investigate the whole of the case and to submit a charge-
sheet in respect of all the offences, cognizable or non-cognizable, both.
Sec. 155(4) is a new provision introduced for the first time in the Code in 1973. This was done to
overcome the controversy about investigation of non-cognizable offences by the police without the
leave of the Magistrate. The statutory provision is specific, precise and there is no ambiguity in the
language employed in sub sec. (4). This Court in Pravin Chandra Mody v State of A.P. (AIR 1965 SC
1185) has held that while investigating a cognizable offence and presenting a charge-sheet for it,
the police are not debarred from investigating any non-cognizable offence arising out of the same
facts and including them in the charge-sheet.]
Evidentiary Value of F.I.R.
The F.I.R. can be put in evidence (usually by the prosecution) when the informant is examined, if it
is desirable to do so. However, F.I.R. is not a piece of substantive evidence (evidence of facts stated
therein cannot be taken for granted, final and established) and it cannot be preferred to the
evidence given by the witness in court [George AIR 1960 Ker 142]. It can be used only for limited
purposes, like corroborating (under Sec. 157, Evidence Act) or contradicting (cross-examination
under Sec. 145, Evidence Act) the maker thereof, or to show that the implication of the accused was
not an afterthought. It can also be used under Sec. 32(1) and Sec. 8(j) and (k) of the Evidence Act.
Thus, F.I.R. is not a substantive piece of evidence. Its only use is to contradict or corroborate the
maker thereof (Shambhu Dass v State of Assam AIR 2010 SC 3300]. Obviously, the F.I.R. cannot be
used for the purposes of corroborating or contradicting or discrediting any witness other than the
one lodging the F.I.R. [George v State of Kerala, 1998 CrLJ 2034 (SC)]. It cannot be used for
corroborating the statement of a third party [State of MP v Surbhan AIR 1996 SC 3345).
The statement made in FIR cannot be considered as evidence, unless it falls within the purview of
Sec. 32 of the Evidence Act (where FIR is also a dying declaration, it can be used as a substantive or
primary evidence). But the F.I.R. made soon after the alleged incident can be looked into to remove
a doubt as to the name of an eye witness given in the list of witnesses filed by the prosecution,
which was mentioned in the F.I.R. by the informant. The report is admissible under Sec. 8 of the
Evidence Act (Umrao Singh v State of U.P. AIR 1961 M.P. 45).
The importance of F.I.R. as conveying the earliest information regarding the occurrence can't be
doubted. The object of F.I.R. is to get a true or nearly true version of the events connected with a
crime. It need not contain each and every minute incident that occurred either prior to or
subsequent to any offence. Thus, it need not contain the name of witnesses. It need not necessarily
be an eye-witness account of what the informant has actually seen. The value of a F.I.R. will vary
accordingly as it is based on information given by the complainant or eye-witness to the crime or a
mere stranger. However, its importance was not minimized just because it was lodged by an
unconcerned person. Likewise, F.LR. given by a close relative of the deceased cannot be doubted on
the ground that he would leave the victim in hospital and go to the police station [Hem Raj v Raja
Ram, 2004 CrLJ 901 (SC)].
F.I.R. can be used for the purpose of testing the truth of the prosecution story [Ram Kumar v State
of M.P. AIR 1975 SC 1026]. F.I.R. provides a check on the undesirable tendency on the part of the
prosecution to fill the gaps on its own. If the prosecution tries to fit in certain fact in the given F.I.R.,
the same can be checked up in the light of F.I.R. Omission of important facts affecting the
probabilities of the case are relevant under Sec. 11 of the Evidence Act in judging the veracity of the
prosecution case. However, the prosecution case cannot be thrown out merely on the ground that
entirely different version is given by its maker [D.R. Bhagore v State of Maharashtra, 1973 CrLJ 680
(SC)]. When the prosecution has neither produced in evidence the person who made the first report
in the police station nor the person who wrote it out at the police station, the F.I.R. cannot be
referred to in evidence [Ramesh Kumar v State, 1990 CrLJ 255 (Del)].
If the F.I.R. is given to the police by the accused himself, it cannot possibly be used either for
corroboration or contradiction because the accused cannot be a prosecution witness, and he would
very rarely offer himself to be a defence witness under Sec. 315 of the Code. If the F.I.R. given by the
accused person is non-confessional, it may be admissible in evidence against the accused as an
admission under Sec. 21 of the Evidence Act, or. as showing his conduct under Sec. 8 of the
Evidence Act [Aghnoo Nagesia v State of Bihar AIR 1966 SC 119]. If the F.I.R. is of a confessional
nature it cannot be proved against the accused-informant, because according to Sec. 25 of the
Evidence Act, no confession made to a police officer can be proved as against a person accused of
any offence. But it might become relevant under Sec. 8 of the Evidence Act as his conduct [Bheru
Singh v State of Rajasthan (1994) 2 SCC 467].
Although a F.I.R. may be merely hearsay and need not necessarily be given by a person who has
first-hand knowledge of the facts, yet it provides the initial groundwork on the basis of which the
entire investigation and prosecution will be conducted. As soon as the F.I.R. regarding a cognizable
offence is received, the machinery for investigation come into motion at once. The evidentiary value
of F.I.R. is far greater than that of any other statement recorded by the police during the course of
the investigation.
Investigation of Cognizable Case (Sec. 156)
The Criminal Procedure Code does not confer the power to investigate on every police officer.
According to Sec. 156, only an officer-in-charge of a police station (i.e. Station House Officer or
S.H.O.) is empowered to investigate. Under Sec. 156, the S.H.O., may without the order of a
Magistrate, investigate any cognizable case, and such proceeding shall not at any stage be called in
question on the ground that the case was one which such officer was not empowered under this
section to investigate. The only limitation placed is that the cognizable offence be such as has been
committed within the limits of the jurisdiction of the court which take cognizance of the matter and
try the case.
Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any
cognizable case which a court having jurisdiction over the local area within the limits of such
station would have power to inquire into or try under the provisions of Chapter XIII [Sec. 156(1)].
The police can investigate even without a F.I.R., if a police officer has reason to suspect the
commission of a cognizable offence. F.I.R. is only a report about commission of an offence and it is
not a substantive evidence, as the police has yet to investigate the offence [Sohan Lal v State of
Punjab, 2003 CrLJ 4569 (SC)].
This statutory right of the police to investigate cannot be interfered with or controlled by the
judiciary [King Emperor v Khwaja Nazir Ahmad AIR 1945 PC 18]. The court may or may not take
action when a charge-sheet is preferred by the police after investigation but its function does not
begin until that stage. If, however, the F.I.R./ other relevant materials do not prima facie disclose
any cognizable offence or the proceedings are initiated mala fide, the police in that case have no
authority to investigate and the High Court in the exercise of its inherent powers under Sec. 482 can
stop and quash such an investigation [State of U.P. v R.K. Srivastava (1989) 4 SCC 59]. But the High
Court is not justified in quashing the investigation which is still on its way [Jayant Vitamins Ltd. v
Chaitanya Kumar AIR 1992 SC 1930].
Order of Investigation by Magistrate [Sec. 156(3)
Sec. 156(3) lays down that a Magistrate may order investigation into an offence by the police when
no complaint has been made to him but he has information about a cognizable case. Sec. 156(3)
enables a Magistrate to order the investigation of an offence of which he may have taken cognizance
under Sec. 190. As per Sec. 190, a Magistrate may take cognizance of any offence upon receiving a
complaint/ police report (challan) or upon his own knowledge. The words 'any Magistrate' refers to
Judicial Magistrate and not Executive Magistrate; the latter cannot direct investigation of a
cognizable offence [Bateshwar Singh v State, 1992 CrLJ 2122 (Pat)].
Whenever a Magistrate directs an investigation on a complaint the police has to register a

cognizable case treating the same as F.I.R. Once such a direction is given under Sec. 156(3), the
police is required to investigate and on completion of it to submit a police report in accordance with
Sec. 173(2) on which a Magistrate may take cognizance under Sec. 190(1)(b) [Madhubala v Suresh
Kumar, 1997 CrLJ 3757 (SC)]. It is the duty of the Officer-in-Charge of the Police Station to register
an FIR when investigation under Sec. 156(3) is directed by the Magistrate, even when the
Magistrate explicitly does not say so [Mohd. Yousuf v Afaq Jahan (2006) I SCC 627]. Usually it is for
the police to register the case. However, on perusal of a report the Magistrate can order registration
of the case under Sec. 156(3).
The power to order investigation under Sec. 156(3) is different from the power to order
investigation under Sec. 202(1). The first is exercisable at the pre-cognizance stage, the second at
the post-cognizance stage (when the Magistrate is seized of the case i.e. issue of process to the
accused). The legal prepositions regarding the order of investigation by a Magistrate under the
Secs. 156(3), 190 and 202 of the Code are:
(i) A Magistrate can order investigation under Sec. 156(3) before taking cognizance under Sec. 190,
and where a Magistrate decides to take cognizance under the provisions of Chapter XIV he is not
entitled by law to order any investigation under Sec. 156(3).
(ii) Where the Magistrate chooses to take cognizance he can (a) peruse the complaint and if there
are sufficient grounds for proceeding he can issue process (warrant/ summons) to the accused (b)
postpone the issue of process and direct an inquiry by himself (c) postpone the issue of process and
direct an inquiry by any other person or an investigation by police (Sec. 202).
(iii) In case the Magistrate after considering the statement of the complainant and the witnesses or
as a result of the investigation and inquiry ordered, is not satisfied, that there are sufficient grounds
for proceeding, he can dismiss the complaint.
(iv) Where a Magistrate orders investigation by the police (before taking cognizance) under Sec.
156(3) and receives the report (challan) thereon under Sec. 173, he can act on the report and
discharge the accused or issue the process against the accused or apply his mind to complaint filed
before him and take action under Sec. 190.
When the Police Itself is a Complainant
In Bhagwan Singh v State of Rajasthan (AIR 1976 SC 985), a police head constable lodged F.I.R. that
bribe was offered to him. He himself investigated the case. Held that the investigation by the
complainant himself was an infirmity which was bound to reflect on the credibility of the
prosecution case. In Megha Singh v State of Haryana (AIR 1995 SC 2339), a head constable arrested
the accused, recovered a pistol and cartridges from his possession and lodged an F.I.R., yet he
proceeded to examine witnesses. Held that the complainant himself should not have proceeded for
investigation.
MADHU BALA V SURESH KUMAR [1997 Cr. LJ. 3757 (SC))
([Whenever a Magistrate directs an investigation on a complaint the police has to register a

cognizable case treating the same as F.I.R. Once such a direction is given under Sec. 156(3), the
police is required to investigate and on completion of it to submit a police report in accordance with
Sec. 173(2) on which a Magistrate may take cognizance under Sec. 190(1)(b)]
In this case, the question arose whether under Sec. 156(3) of the Code, a Magistrate can only direct
investigation by the police but has no power to direct 'registration of a case. The Punjab and
Haryana High Court held that the Magistrate has no power to direct registration of a case. The Apex
Court, however, disagreed with the High Court.
The Supreme Court held that once a complaint disclosing a cognizable offence is made before a
Magistrate, he may take cognizance upon the same under Sec. 190(1)(a) or order an investigation
by the police under Sec. 156(3), Cr.P.C. Whenever a Magistrate directs an investigation on a
"complaint" the police has to register a cognizable case on that complaint treating the same as F.I.R.
and comply with the requirements of the above rules. Once such a direction is given under Sec.
156(3), the police is required to investigate into that complaint under Sec. 156(1) and on
completion of investigation to submit a police report in accordance with Sec. 173(2) on which a
Magistrate may take cognizance under Sec. 190(1)(b) and not under Sec. 190(1)(a).
The court observed: "It is incorrect to say that under Sec. 156(3) a Magistrate can only direct
investigation but cannot direct 'registration of a case' for no such power is given to him under that
section. Such a power inheres in Sec. 156(3), for investigation directed thereunder can only be in
the complaint filed before the Magistrate on which a case has to be formally registered in the police
station treating the same as FIR.
Thus, where an order for investigation under Sec. 156(3) is to be made the proper direction to the
police would be "to register a case at the police station treating the complaint as the first
information report and investigate into the same". Even under Sec. 156(1), the police is duty bound
to register a cognizable case and then investigate into the same. The provisions of the Code,
therefore, do not stand in the way of a Magistrate to direct the police to register a case at the police
station and then investigate into the same."
The court further observed: If the reasoning of the Punjab and Haryana High Court is taken to its
logical conclusion it would mean that if a Magistrate issues a direction to submit a report under Sec.
173(2) of the Code after completion of investigation while passing an order under Sec. 156(3), it
would be equally bad for the said section only "directs investigation" and nothing more. Needless to
say, such a conclusion would be fallacious, for while with the registration of a case by the police on
the complaint, the investigation directed under Sec. 156(3) commences, with the submission of the
"police report" under Sec. 173(2) it culminates.
SAKIRI VASU V STATE OF U.P. [(2008) 2 SCC 409]

[Section 156(3) Cr.P.C. is wide enough to include all such powers In a Magistrate which are
necessary for ensuring a proper investigation, and it includes the power to order registration of an
F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation
has not been done, or is not being done by the police (though Magistrate cannot investigate
himself). Section 156(3) Cr.P.C., though briefly worded, is very wide and it will include all such
incidental powers as are necessary for ensuring a proper investigation.]
In this case, the power of a Magistrate under Sec. 156(3), Cr.P.C. was in issue. Sec. 156(3) lays down
that a Magistrate may order investigation into an offence by the police when no complaint has been
made to him but he has information about a cognizable case.
The Court observed: If a person has a grievance that the police station is not registering his FIR
under Sec. 154 Cr.P.C., then he can approach the Superintendent of Police under Sec. 154(3) Cr.P.C.
by an application in writing. Even if that does not yield any satisfactory result in the sense that
either the FIR is still not registered. or that even after registering it no proper investigation is held,
it is open to the aggrieved person to file an application under Sec. 156(3) Cr.P.C. before the learned
Magistrate concerned. If such an application under Sec. 156(3) is filed before the Magistrate, the
Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made,
in a case where, according to the aggrieved person, no proper investigation was made. The
Magistrate can also under the same provision monitor the investigation to ensure a proper
investigation.
Thus, in Mohd. Yousuf v Smt. Afaq Jahan JT 2006(1) SC 10, this Court observed: The clear position
therefore is that any judicial Magistrate, before taking cognizance of the offence, can order
investigation under Sec. 156(3). Even if a Magistrate does not say in so many words while directing
investigating under Sec. 156(3) that an FIR should be registered, it is the duty of the officer in
charge of the police station to register the FIR regarding the cognizable offence disclosed by the
complaint because that police officer could take further steps contemplated in Chapter XII of the
Code only thereafter. The same view was taken by this Court in Dilawar Singh v State of Delhi JT
2007 (10) SC 585.
Section 156(3) provides for a check by the Magistrate on the police performing its duties under
Chapter XII Cr.P.C. The power in the Magistrate to order further investigation under Sec. 156(3) is
an independent power, and does not affect the power of the investigating officer to further
investigate the case even after submission of his report vide Sec. 173(8). Hence the Magistrate can
order re-opening of the investigation even after the police submits the final report, vide State of
Bihar v A.C. Saldanna AIR 1980 SC 326.)
Police officer's power to require Attendance of Witnesses (Sec. 160)
For effective investigation, the police must be able to obtain information from the person
acquainted with the facts and circumstances relevant to the commission of the offence under
investigating. That is what Sec. 160 provides. Under this section, an investigating police officer may
by order require the attendance before himself of any person if the following conditions are
satisfied:
(I) the order must be in writing.
(ii) the person to whom the order is made is one who appears to be acquainted with the facts and
circumstances of the case, and
(iii) such a person is within the limits of the police station of the investigating officer or is within
the limit of any adjoining police station.
The words any persons' include a person who may become the accused [Narayan Swami v Emperor
AIR 1939 PC 47], Sec. 160 does not authorize a police officer to require the attendance of an
accused person with a view to his answering the charge. The intention of the Legislature seems to
have been only to provide a facility for obtaining evidence and not for procuring the attendance of
the accused, who may be arrested at any time, if necessary, without a warrant.
Examination of Witnesses by Police [Sec. 161) (Sec. 161 gives the power to the investigating police
officer to examine orally any person supposed to be acquainted with facts and circumstances of
case and such a person is required to answer truly all questions relating to the case put to him by
such an officer. However, the person giving any oral testimony may not answer any question which
might have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The police
officer may reduce into writing any statement made to him in the course of the examination of a
person; and if he does, he shall make a separate and true record of the statement of each such
person whose statement he records.
The object of Sec. 161 is to obtain evidence which may later be produced at the trial. It enables the
police to examine the witnesses during investigation. Any police officer making investigation under
this Chapter, or any police officer not below such rank as the State Government may prescribe in
this behalf, may examine orally any person supposed to be acquainted with the facts and
circumstances of the case [Sec. 161(1)].)
Recording of Statements [Sec. 161(3)]
The investigating officer may reduce into writing any statement made to him in the course of the
examination of a person; and if he does so, he shall make a separate and true record of the
statement of each such person whose statement he records [Sec. 161(3)]. If he records only one
joint statement of several witnesses, that would not render their evidence as inadmissible but affect
the weight to be attached to their evidence [Tilkeshwar Singh v State of Bihar AIR 1956 SC 238].
A police officer making an investigation is not bound to reduce into writing the statements of
witnesses examined by him; but it is desirable that he records at least the substance of such
statements. It would be open to him to satisfy the court that his failure in this respect was due to
reasons beyond his control. A statement or record under Sec. 161 is generally called "case diary
statement."
The statements should be recorded as far as possible in very words of the person examined and
should not be in indirect (boiled) form of speech [B. Ramaiah v State AIR 1960 A.P. 160]. The
section prohibits the making of a precis of a statement of witness or merely recording that one
witness corroborates another [Sudhir Kumar Mandal (1950) 2 Cal 343]. When a witness examined
in court whose statement under Sec. 161 had not been recorded at the time of investigation, the
evidentiary value to be attached to the evidence of such witness has to be looked into and if it
would be found that prejudice had been caused to the accused then the evidence of such witness
may not be acted upon [Karmu Bhakta v State, 1992 CrLJ 2154 (Ori)].)
Statements to Police Not to be Signed [Sec. 162(1)]
Sec. 162 lays down that the person making any statement in connection with the investigation
being conducted by police shall not sign the statement if 10 it is reduced to writing, nor can this
statement or any other record thereof can be used for any purpose (except those mentioned) at any
inquiry/trial in respect of any offence under investigation at the time when such statement was
made.
It may be noted that Sec. 161(3) does not require a person making a statement to a police officer to
sign it as that might lead to abuse of power by the police. For instance, it might facilitate a police
officer to obtain the signature of a witness by compulsion to a statement recorded by such an officer
and when faced with this statement at the subsequent stages of trial the witness would find it
difficult to go against that statement, although he may be anxious to state the truth before the
court.
Sec. 162(1) lays down that "no statement made by any person to a police officer in the course of an
investigation, shall, if reduced to writing be signed by the person making it." However, if an
investigating officer has by mistake obtained the signature of the accused on the seizure memo in
violation of Sec. 162(1), it shall not vitiate the whole proceedings [State of Rajasthan v Teja Ram
(1999) 3 SCC 507]. If the officer obtains the signature of a witness on his recorded statement, the
evidence of the witness is not thereby rendered inadmissible. It merely puts the court on caution
and may necessitate an in-depth scrutiny of such evidence [State of U.P. v M.K. Anthony AIR 1985
SC 48].
Use of Statements Made to the Police In Evidence (Sec. 162)
In general, a statement made to the police (by way of F.I.R. or recorded during police investigation)
cannot be considered as substantive evidence i.e. as evidence of facts stated therein. Because it is
not made during trial, it is not given on oath, nor is it tested by cross-examination. If the person
making any such statement to the police subsequently appears and gives evidence in court at the
time of trial, his former statement could, however, be used to corroborate or to contradict his
testimony (if the statement is by way of F.I.R. or it is not made during police investigation), or to
contradict his testimony, if it is a statement made during police investigation. It may be noted that
the evidentiary value of the F.I.R. is far greater than that of any other statement recorded by the
police during investigation.
Sec. 162(1) lays down that no such statement or any record of such a statement, whether in a police
diary or otherwise, or any part of such statement or record, be used for any purpose other than
those stated in the section at any inquiry or trial in respect of any offence under investigation at the
time when such statement was made. The proviso to Sec. 162(1) provides that such statement, if
duly proved, may be used by the accused or by the prosecution (with the permission of the court) to
contradict such witness (maker of the statement), when called for the prosecution in an inquiry or
trial, in the manner provided by Sec. 145 of the Evidence Act; and when it is so used, any part
thereof may also be used in the re-examination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination.
statement Made to a Police Officer under Sec. 162
The word 'statement' in Sec. 162 means narration addressed to a police officer by some other
person. It includes both oral (including signs and gestures) and written statements. A statement not
only includes what is expressly stated therein but also what is necessarily implied therein
[Tehsildar Singh AIR 1959 SC 1012]. A statement should be made to a police officer. The members
of the Railway Police Protection Force are not police officers. Similarly, a custom officer is not a
police officer and a confession made to him is admissible [Fr. Mario Pires, 1982 CrLJ 461 (Goa)].
A tape-recorded statement' has been held to be outside the purview of Sec. 162. Where a person
talking on the telephone allows a police officer to record it on tape or to hear it, and the court
permits the tape recording to be played over, it was held that such conversation was not within the
vice of Sec. 162 [RM. Malkani v State of Maharashtra AIR 1973 SC 157]. Similarly, when the police
set the stage for the drama (in which the complainant and the accused appellant were the actors),
and hid themselves and took no part in it, neither the complainant nor the accused could be
regarded as having made a statement to a police officer [Yusufalli v State of Maharashtra AIR 1968
SC 147]. Similarly, Sec. 162 does not bar a statement made in a letter written to the police officer
[Kali Ram v State of U.P. AIR 1973 SC 2773]. However, a letter containing narration of facts
addressed by a person to a police officer dur the course of an investigation would be inadmissible
under Sec. 162.)
No Inducement to be offered by Police [Sec. 163] (Sec. 163 prohibits a police officer or a person in
authority from offering or making any inducement, threat or promise as is mentioned in Sec. 24 of
the Evidence Act [sub-sec.(1)]. But he shall not prevent, by any caution or otherwise, any person
from making any statement (in the course of any investigation under this Chapter) which he may be
disposed to make of his own free will [sub-sec. (2)]. A caution, however, is necessary and
imperative in cases falling under Sec. 164(4) of the Code (Proviso to Sec. 163(2)].
Sec. 163 ensures that the statements made to the police during investigation are not affected by
fear or favour. It lays down an embargo on the investigating authorities to use any inducement,
threat or promise which might influence the mind of the maker of the statement and lead him to
suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as
disclosed in the proceedings [P. Sirajuddin v State, 1971 CrLJ 523 (SC)]. A 'person in authority' is
generally one who is engaged in the apprehension, detention, or the prosecution of the accused or
one who is empowered to examine him [Santokhi Beldar v Emperor AIR 1933 Pat 149].
The following have been held to be cases of inducements and threats:
(i) "I will get you released, if you speak the truth".
(ii) "You had better pay the money than go to jail, and would be better for you to tell the truth".
(ii) "If you confess the truth, nothing will happen to you".
(iv) "If you speak the truth, we will speak to the constable and arrange".
(v) "Tell me what you know about it; if you will not, I can do nothing for you and I will send for the
constable".
On the other hand, the following have been held to be only "words of caution" and therefore not
amounting to inducements or threats:
(i) "I know the whole thing".
(ii) "Take care, we know more than what you think we know".
(iii) Exhortation to speak the truth.)
Wide Powers to Police during Investigation and Safeguards
Thus, the powers of the police to take statements of accused or suspects during investigation are
quite wide, as they can arrest and detain any person accused of an offence, they can interrogate him
and record his and other eye witnesses statements, and also under Sec. 53, Cr.P.C. seek medical
examination of such persons (medical test can be asked for at any stage of the proceedings).
However, the Criminal Procedure Code has provided various safeguards against the misuse or
abuse of such powers:
(1) A male below the age of 15 or a woman shall be required to attend only at their residence.
(2) No statement made by any person to a police officer shall be signed by the person making it.
This checks the abuse of power by the police, as in some cases the police might obtain the signature
of a witness by compulsion, and when faced with this statement at the subsequent stages of trial,
the witness would find it difficult to go against the statement (recorded), although he may be
anxious to state the truth before the court.
kept in mind the distinction between 'statements' and 'confessions. It is well settled that all
confessions are statements but all statements are not confessions.
Sec. 164 does not specifically mention any person whose confession or statement is to be recorded;
he may be accused or may be one who may ultimately be an accused, or a witness capable of giving
useful information relating to offence.
The mode of recording confessions is much more elaborate than those of recording statements.
This is necessary to ensure that free and voluntary confessions alone are recorded and recorded
accurately. If the Magistrate chooses to record a confession, Sec., 164 requires him to comply with
four provisions, viz.-
(i) he should give a statutory warning that the accused is not bound to make a confession,
(ii) he should be first satisfied that it is being made voluntarily,
(iii) the confession should be recorded and signed in the manner provided in Sec. 281 and shall be
signed by the person making confession, and
(iv) the Magistrate should add memorandum at the foot of the confession.
The essential ingredients of Sec. 164 are as follows:
(1) A confession/statement can be recorded only by a metropolitan/ judicial magistrate (whether

or not he has jurisdiction in the case)¹3 [S. 164 (1)]. Provided that any confession or statement
made under this sub-sec, may also be recorded by audio-video electronic means in the presence of
the advocate of the person accused of an offence (Inserted by 2008 Amendment). [The proviso to
sub-sec. (1) further makes it clear that a police officer on whom the powers of a magistrate have
been conferred by any law, will not be considered competent to record confession under Sec. 164].
A confession recorded by any other person/authority is inadmissible in evidence.
If any Executive Magistrate or any other Magistrate not empowered under sub-sec. (1) (viz. a
Magistrate of Second Class) records a confession, that record cannot be put in evidence [State of
U.P. v Singhara Singh AIR 1964 SC 358]. Some special statutes confer power on the police officers
and Executive Magistrates to record confession/statement. Thus, Sec. 15 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (now repealed) and Rule 15 of TADA Rules authorize
the Superintendent of Police also to record a confession/statement besides Metropolitan
Magistrates, Judicial Magistrates and Special Executive Magistrates empowered to record any
confession under Sec. 164(1) [Kartar Singh v State of Punjab AIR 1995 SC 1726].
(2) Confessions/statements can be recorded under Sec. 164 either in the "course of an
investigation" (under this Chapter or any other law), or at "any time afterwards before the
commencement of inquiry or trial" [Sec. 164(1)]. The Magistrate can record confession even after
the submission of police charge-sheet provided magisterial inquiry or trial has not commenced
[Raja Ram v State AIR 1966 All 192]. If the confession is recorded by a Magistrate when no
investigation had begun, Sec. 164 has no application [IN. Murthy, In re AIR 1966 A.P. 131].
Legal Consequences of Non-compliance with Sec. 164 Provisions
The special procedure laid down under Sec. 164 is mandatory. The Law Commission of India in its
37th Report noted that "the provisions contained in Sec. 164, if administered in the proper spirit,
are most salutary. They should not degenerate into idle formalities." From a perusal of the various
judgments of the higher courts in India, it is clear that the procedural or technical non-compliance
would not make a confession/ statement inadmissible, if there is a 'substantive' compliance with
the provisions of Sec. 164.
Further, Sec. 463, Cr. P.C., is designed to cure to some extent the defects and irregularities in the
recording of the confession under Sec. 164 [e.g. the person making the confession might not have
been cautioned at required by Sec. 164(2), or the magistrate might have failed to record the
confession in accordance with Sec. 164(4)]. When a magistrate fails to record a confession as
required by Sec. 164, no evidence can be given to show that such confession was in fact duly made
to the magistrate. Sec. 463, however, lifts this embargo on the admission of such evidence provided
(a) such non. compliance with Sec. 164 has not injured the accused in his defence on the merits and
(b) he had in fact duly made the statement recorded.
Sec. 463 permits oral evidence to be given to prove that the procedure laid down in Sec. 164 had in
fact been followed when the court finds that the record produced before it does not show that was
so. If the oral evidence establishes that the procedure had been followed then only can the record
be admitted. This section cures the irregularity when a confession is made in one language and is
recorded in another. Where the accused was not cautioned or while recording his confession some
questions put to him were not recorded by the magistrate, it became the duty of the Sessions Judge
to look into it and find out whether such omission had prejudiced the accused. If not, the confession
would be admissible in evidence.
The Magistrates failure to ask why the accused wanted to confess has been held to be a non-
compliance of form curable under Sec. 463 [Kehar Singh's case]. Where the Magistrate lacks
jurisdiction to record a confession under Sec. 164 (viz. an Executive Magistrate) and he records it, it
cannot be said that the accused duly made the statement under Sec. 164; this basic defect cannot be
cured by Sec. 463 [State of U.P. v Singhara Singh case]. In Singhara Case (AIR 1964 SC 358), the
Supreme Court also observed that the object in giving power to a magistrate to record confession
under Sec. 164 is that the confession may be proved by the record of it made in the prescribed
manner. If proof of the confession by other means is made permissible, the whole purpose of Sec.
164 including safeguards contained in it for the protection of the accused, would be rendered
nugatory. Thus, it prohibits the Magistrate from giving oral evidence of the confession made to him.
It may be noted that Sec. 26 of the Evidence Act makes no distinction between an oral confession
and written confession; an oral confession can also be proved.
Mere absence of warnings under Sec. 164 would not make the confession inadmissible, provided
the court is satisfied that the accused knew that he was not bound to make the confession and that
if he did so it would be used as evidence against him (State v Mithu, 1977 Cr LJ 1018). However, if
the magistrate recording a confession, does not, on the face of the record, certify in clear terms his
satisfaction or belief as to voluntary nature of the confession recorded by him, the defect would be
fatal to the admissibility and use of confession against the accused at the trial [Chandran v State of
T.N. (1978) 4 SCC 90].
If the confession is recorded by a magistrate when no investigation had begun, the mandatory
procedure laid down in Sec. 164 is not applicable in such a situation. In a case where the accused
after committing murder went to a magistrate and made a confessional statement and the
magistrate recorded it and the accused signed it, it was held that though the procedure laid down in
Sec. 164 was not followed, yet as no investigation of crime registered against the accused was in
progress, the confession was admissible in evidence (Y. Narsimha Murthy, Re, AIR 1966 A.P. 131).
A confessional record must be signed by the accused and also by the magistrate. Signature or finger
impression merely indicates authenticity of the statement and is not an admission of correctness of
the statement. An omission to take signature is not necessarily fatal and may be cured by the
evidence of the magistrate under Sec. 463. It has been held that mere failure. to get the signature of
the person making the confession may not be very material if the making of such statement is not
disputed by the accused but in cases where the making of the statement itself is in controversy, the
omission to get the signature is fatal [Dhananjaya Reddy v State of Karnataka, 2001 Cr LJ 1712
(SC)].
Medical Examination of the Victim of Rape (Sec. 164-A)
Insertion of new Sec. 164-A (by 2005 Amendment): (1) Where, during the stage when an offence of
committing rape or attempt to commit rape is under investigation, it is proposed to get the person
of the woman with whom rape is alleged or attempted to have been committed or attempted,
examined by a medical expert, such examination shall be conducted by a registered medical
practitioner employed in a hospital ran by the Government or a local authority and in the absence
of such a practitioner, by any other registered medical practitioner, with the consent of such
woman or of a person competent to give such consent on her behalf and such woman shall be sent
to such registered medical practitioner within twenty-four hours form the time of receiving the
information relating to the commission of such offence.
(1) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine
her person and prepare a report of his examination giving the following particulars, namely:
(i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.
(2) The report shall state precisely the reasons for each conclusion arrived at.
(3) The report shall specifically record that the consent of the woman or of the person competent to
give such consent on her behalf to such examination had been obtained.
(4) The exact time of commencement and completion of the examination shall also be noted in the
report.
(5) The registered medical practitioner shall, without delay, forward the report to the investigating
officer who shall forward it to the Magistrate referred to in Sec. 173.
(6) Nothing in this section shall be construed as rendering lawful any examination without the
consent of the woman or of any person competent to give such consent on her behalf.
Procedure when Investigation Cannot be Completed in 24 hours (Sec. 167) (Powers and duties of a
Magistrate to remand an accused to custody)
The police cannot detain an accused person arrested without warrant for more than 24 hours (Sec.
57, Cr. P.C.). If the police officer considers it necessary to detain such person for a longer period for
the purposes of investigation, he can do so only after obtaining a special order of a magistrate under
Sec. 167.18 It may be noted that Sec. 309 similarly deals with the power to 'remand.' The detention
in police custody is generally disfavored by law, and such detention can be allowed only in special
circumstances for reasons judicially scrutinized, and for such limited periods as the necessities of
the case may require (Jai Singh v Emperor, 33 Cr LJ 287).
The scheme of Sec. 167 is intended to protect the accused from an unscrupulous police officer. The
object is to see that persons arrested by the police are brought before the Magistrate with the least
possible delay so that the Magistrate could decide whether the persons produced should further be
kept in police custody and also to allow them to make such representations as they may wish to
make [Chadayam Makki v State, 1980 CLJ 1195 (Ker)].
The entire object of Sec. 167, however, is to facilitate investigation and not detention without trial.
The idea is to prevent disappearance of material evidence and to prevent vexatious and belated
prosecutions, clearly in consonance with the concept of fairness of trial enshrined in Art. 21 of the
Constitution [Y. Krishnappa v State, 1993 CrLJ 3646 (Mad)].
An analysis of Sec. 167 will bring out the following points:
(1) Whenever any person is arrested and detained in custody and it appears that the investigation
cannot be completed within 24 hours, and there are grounds for believing that the accusation or
information is well founded, the officer in charge of the police station or the officer making the
investigation shall forthwith transmit a copy of the entries in the case diary to the nearest Judicial
Magistrate, and shall also at the same time forward the accused to such magistrate [Sec. 167(1)].
For invoking Sec. 167(1), it is necessary that the arrest should have been made only by a police
officer and none else, and there need not necessarily be the records of entries in a case diary.
(2) The judicial magistrate to whom the accused so forwarded may (whether he has or has not
jurisdiction to try the case), from time to time, authorise the detention of the accused in such
custody as he thinks fit, for a term not exceeding 15 days in the whole [Sec. 167(2)]. If he has no
jurisdiction to try the case, and considers further detention unnecessary, he may order the accused
to be forwarded to a Judicial Magistrate having jurisdiction.
(3) The Magistrate has full freedom to order detention in any custody (e.g. police or judicial or jail
or asylum, etc.) as he thinks fit. But, detention in police custody should not be allowed as a matter of
course but only in special circumstances. The period of 15 days begin to run immediately after the
accused is before the Magistrate [State v Ravinder Kumar, 1982 CrLJ 2366 (Del)]. The nature of
custody can be altered from judicial to police custody and vice versa; but after 15 days, the accused
can only be kept in judicial custody or any other custody as ordered by the Magistrate, but not the
custody of the police [Proviso (a), Sec. 167(2); C.B.I. v Anupam Kulkarni (1992) 3 SCC 141]. The
total period of detention (including the 15-days period) shall not exceed 90 days (in case of offence
punishable with death/life-imprisonment) and 60 days (any other offence) [Proviso (a), Sec.
167(2)]. Thus, in offences wherein the sentence up to 10 years' imprisonment is provided, the
challan (or charge-sheet by the prosecution) has to be filed within 60 days and in cases where
sentence period is not less than 10 years, challan has to be filed within 90 days.
Proviso (a)(ii) further lays down that on the expiry of the said period of 90 or 60 days, the accused
person shall be released on bail if he is prepared to and does furnish bail; and every person so
released on bail shall be deemed to be released under the provisions of Chapter XXXIII of the Code
dealing with bail and bonds. However, Explanation I to Sec. 167(2) makes it clear that
notwithstanding the above-mentioned period of 90 or 60 days, the accused shall be detained in
custody so long as he does not furnish bail.
(4) No magistrate shall authorise detention in any custody under Sec. 167 unless the accused is
'produced before him' [Proviso (b) to Sec. 167(2)]. The object of requiring the accused to be
produced before the magistrate is to enable the magistrate to decide judicially whether remand is
necessary and also to enable the accused to make any representation to the magistrate to
controvert the grounds on which the police officer has asked for remand.
In Ramesh Kumar Ravi v State [1987 CrLJ 1489 (Pat)], it was held that though physical production
of the accused is desirable, yet the failure to do so would not per se vitiate the order of remand if
the circumstances for such non-production were beyond the control of the prosecution/ police.
Where the Magistrate went on extending judicial custody without production of the accused before
him, such judicial custody is illegal.
As observed by the Supreme Court, the provisions inhibiting detention without remand is a very
healthy provision which enables the magistrates to keep check over the police investigation [Khatri
(II) v State of Bihar (1981) I SCC 627]. In this case, without seeing the accused the Magistrate
remanded him to custody. The action was held illegal. In Manoj v State of M.P. [1999 CrLJ 2095
(SC)], held that there are two obligations of the police officer. One is that if he knows that
investigation cannot be completed within 24 hours after arrest of the accused, he must transmit a
copy of the case diary to the nearest Magistrate and secondly, he must forward the accused to such
Magistrate simultaneously. If he fails to do so, the detention of the accused in the police custody
would become unlawful.
Now, by virtue of 2008 Amendment, Magistrate could extend further detention in judicial custody
of the accused through the medium of electronic video linkage. The proviso (b) now reads: "No
Magistrate shall authorize detention of the accused in custody of the police under this section
unless the accused is produced before him in person for the first time and subsequently every time
till the accused remains in the custody of the police, but the Magistrate may extend further
detention in judicial custody on production of the accused either in person or through the medium
of electronic video linkage."
"Explanation II. If any question arises whether an accused person was produced before the
Magistrate as required under clause (b), the production of the accused person may be proved by his
signature the order authorizing detention or by the order certified by the Magistrate as to
production of the accused person through the medium of electronic video linkage, as the case may
be."
2008 Amendment amends Sec. 167 relating to procedure when investigation cannot be completed
in twenty-four hours. It amends proviso to Sec. 167(2) in order to make provision for the
Magistrate to extend further detention in judicial custody of the accused also through the medium
of electronic video linkage except for the first time where the production of the accused in person is
required. The clause also inserts a further proviso to the said sub-sec. (2) to provide that in the case
of a woman under 18 years of age, the detention shall be authorized to be in the custody of a
remand home or recognized social institution.
(5) The magistrate has to exercise his judicial mind while deciding whether or not the detention of
the accused in any custody is necessary. The magistrate should consider all available materials
before authorising detention. The order of detention is not to be passed mechanically as a routine
order on the request of the police for remand [Madhu Limaye, Re, 1969 Cr LJ 1440 (SC))].
(6) The magistrate has full discretion to order detention in police custody or judicial custody.
Particularly where the detention in the custody of the police is ordered, by a judicial magistrate, he
is specially required to record reasons for doing so [Sec. 167(3)]. The magistrate must satisfy
himself that the accusation is well founded and that the presence of the accused is necessary while
the police investigation is going on.
(7) Any magistrate other than the Chief Judicial Magistrate, making an order under Sec. 167(2),
shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate
[Sec. 167(4)]).
Procedure to be followed on Completion of Investigation (Secs. 169 - 173) (Follow-up Procedure)
On the completion of investigation, the police is required to follow certain procedure as laid down
in Secs. 169-173. Submission of the police report ("charge sheet" or "challan") is the end-result of
such investigation. Under Sec. 172, every police officer is required to maintain a "case diary."
After the investigation is complete, there are two courses open to the police officer making the
investigation:
(a) Release of accused when evidence is deficient - If upon investigation it appears to the S.H.O. that
there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the
accused to a magistrate, such officer shall, if such person is in custody, release him on his executing
a bond, to appear, if and when so required, before a magistrate for trial (Sec. 169).
(b) Cases to be sent to magistrate when evidence is sufficient - If upon investigation, it appears to
the S.H.O. that there is sufficient evidence or reasonable ground to justify the forwarding of the
accused to a magistrate, such officer shall forward the accused under custody to a magistrate for
trial. If the offence is bailable and the accused is able to give security, shall take security from him
for his appearance before such a magistrate [Sec. 170(1)].
This is the only section under which a police officer can take recognizance from the accused for his
appearance before a Magistrate. may be noted that a mere admission of guilt or confession by the
accused during the investigation of the offence does not necessarily amount to sufficient evidence
under this section [Lakshmipat Choraria (1964) 67 Bom LR 618].
The officer-in-charge shall send to the Magistrate any weapon or other article which it may be
necessary to produce before him, and shall require the complainant (if any) and the witnesses to
execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence
(as the case may be), in the matter of the charge against the accused [Sec. 170(2)].
Sec. 171 lays down that a complainant or a witness on his way to any court is not required to
accompany a police officer, nor is he to be subjected to unnecessary restraint or inconvenience or to
be required to give any security for his appearance other than his own bond. However, if such a
person refuses to attend or to execute a bond as directed in Sec. 170, the officer-in-charge may
forward him in custody until he executes such a bond, or until the hearing of the case is completed
[Proviso, Sec. 171].
(c) Diary of proceedings in investigation -According to Sec. 172(1), every investigating police officer
is required to enter day by day his proceedings in the investigation in a diary, popularly called "case
diary" or "special diary" or a "station house report", stating therein the time at which information
reached him, the time at which he began and closed his investigation, the place or places visited by
him, and a statement of the circumstances ascertained through his investigation.
The object of this section is to enable the Magistrate to know what was the day-to-day information
by the police officer who was investigating the case and what were the lines of his investigation
[Debendra Chandra v Emperor AIR 1934 Cal 458]. Thus, the object of recording "case diaries" is to
enable courts to check the method of investigation by the police, Further, where the cases for
prosecution and defence are both inadequate, the case diary would help the court to discover for
itself the material facts which can be brought to light through examination of witnesses and get at
the truth in the interests of justice [Habeeb Mohd. v State of Hyderabad AIR 1954 SC 51).
Any criminal court can send for the police diaries of a case under inquiry or trial in such a court, and
may use such diaries, not as evidence in the case, but to aid it in such an inquiry/ trial21 [Sec.
172(2)]. The accused person can use it for cross-examination of the police officer only under certain
circumstances. The non-maintenance of diary may not vitiate the trial but it would diminish the
value of the evidence of investigating police officer [Niranjan Singh v State of U.P. AIR 1957 SC
142].
[2008 Amendment: In Sec. 172 of the Principal Act, after sub-sec. (1), the following sub-secs. shall
be inserted, namely:
"(1-A) The statements of witnesses recorded during the course of investigation under Sec. 161 shall
be inserted in the case diary.
(1-B) The diary referred to in sub-sec. (1) shall be a volume and duly paginated." ]
Report of the Police officer on Completion of Investigation (Sec. 173)
There are three kinds of reports to be made by police officers at three different stages of
investigation: (1) Sec. 157 requires a preliminary report from the officer-in-charge of a police
station to the Magistrate; (2) Sec. 168 requires reports from a subordinate police officer to the
officer-in-charge of the station; and (3) Sec. 173 requires a final report of the police officer as soon
as investigation is completed to the Magistrate.
After the completion of the investigation, it is for the investigating police officer to form an opinion
as to whether or not there is a case to place the accused before the magistrate for trial. He would
then follow the procedure laid down in Sec. 169 or 170 and submit a report to the Magistrate
having jurisdiction, under Sec, 173. The necessity of completing the investigation expeditiously is
emphasized by giving a general direction that every investigation shall be completed without
unnecessary delay [Sub-sec. (1)]. Under Sub-sec, (LA) (inserted by 2008 Amendment), the
investigation in relation to rape of a child may be completed within three months from the date on
which the information was ordered by the officer-in-charge of the police station.
The police report submitted under this section is called "Completion/Final Report". If the report
alleges the commission of a crime by an accused person, the report is commonly called the "charge-
sheet" or the "challan". The police charge-sheet corresponds to the complaint of a private individual
on which criminal proceedings are initiated. Submission of charge-sheet means that the
preliminary investigation and preparation of the case is over and the Magistrate can take
cognizance, of the offence [Rama Shankar v State AIR 1956 All 525]. Until the Magistrate receives
police report under Sec. 173, there can be no intervention by him in his judicial capacity or as a
court and until then no occasion can arise for the Magistrate to make judicial order in connection
with the police investigation [M.L. Sethi v R. P. Kapur AIR 1967 SC 528].
TEHSILDAR SINGH V STATE OF U.P. (AIR 1959 SC 1012)
In this case, the Supreme Court observed that resort to Sec. 145 of the Evidence Act would only be
necessary if the witness denies that he made the former statement. The statement cannot be
allowed to be used for the purpose of cross-examining a witness as such. Because it enables the
accused to 'elicit' what the witness stated before the police. The contradiction, under Sec. 162, Cr.
P.C., should be between 'what a witness said in the court and what he stated before the police' and
not between 'what he had stated before the police and what he actually made before him.'
There are two conflicting views about omissions:
(i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be
used to contradict the statement made in the witness box, and
(ii) they must be in regard to the important features of the incident in the statement made before
the police,
The court felt, "the first proposition not only carries out the intention of the legislature but is also in
accord with the plain meaning of the word used in the section. The second proposition not only
stretches the meaning of the word 'statement' to a breaking point, but also introduces an uncertain
element, namely, ascertainment of what a particular witness would have stated in the
circumstances of a particular case and what the police officer should have recorded. When the
section says that the statement is to be used to contradict the subsequent version in the witness
box, the proposition brings in, by construction, what he would have stated to the police within the
meaning of the word 'statement'. Such a construction is not permissible (as what was not stated
could go in on the sly in the name of contradiction)."
It is quite obvious from Sec. 162 that statement not reduced to writing by the police officer cannot
be used for contradiction. However, this court has taken the position that though a particular
statement is not expressly recorded, a statement that can be deemed to be a part of that expressly
recorded can be used for contradiction, not because it is an omission strictly so called but because it
is deemed to form part of the recorded statement. As to the meaning of 'contradiction', it has been
stated thus "the statement before the police officer and the statement in evidence before the court
are so inconsistent and irreconcilable with each other that both of them. cannot co-exist, it may be
said that one contradicts the other." The Supreme Court has also given three illustrations:
(a) When a recital is necessarily implied from the recital/ recitals found in the statement - In the
recorded statement before the police, the witness states that he saw A stabbing B at a particular
point of time, but in the witness box he says that he saw A and C stabbing B at the same point of
time; in the statement before the police the word 'only' can be implied i.e. the witness saw only A
stabbing B. Thus, the omission of the word 'only' in this case amounts to contradiction.
(b) A negative aspect of a positive recital in a statement - In the recorded statement before the
police the witness says a dark man stabbed B, but in witness box he says a fair man stabbed B; the
earlier statement must be deemed to contain the recital not only that the culprit was a dark
complexioned man but also that he was not of fair complexion. Thus, the omission in the earlier
statement would amount to contradiction.
(c) When the statement before the police and that before the court can't stand together - The
witness says before the police that A after stabbing B ran away by a northern lane, but before the
court he says that he ran towards the southern lane, as he could not have run away towards the
northern lane as well as southern lane, if one statement is true, the other must be necessarily false.
Thus, this also amounts to a contradiction.]
Decision of the case in question
The statement of N can be used only for the purpose of contradiction. An omission (on N's part) can
amount to contradiction if it appears to be significant and otherwise relevant having regard to the
context in which such omission occurs (i.e. omission by necessary implication be deemed to be part
of statement). The omission, in the present case, could not be deemed so, as the statement of N
before the police and that before the court are not so inconsistent with each other that both of them
cannot co-exist. A cross-examination implies controverting the statements of the witness, and not
eliciting information from him. Thus, N's omission does not amount to a contradiction and
therefore the question cannot be allowed.
(b) An F.I.R. is more important than a statement of a person recorded by the police during the
course of investigation for the following reasons:
(i) The importance of F.I.R. as conveying the earliest information regarding the occurrence can't be
doubted. The object of F.I.R. is to get a true or nearly true version of the events connected with a
crime. It is the first information and most proximate information from the happening of an
offence/incident and as such its truthfulness and veracity is much higher than the statement of a
person recorded by Police. The police cannot be trusted for recording the statements correctly and
the statements cannot be relied on by the prosecution for the corroboration of their witnesses as
the statements recorded might be of self-serving nature.
(ii) Chances of improvement, concoction and false implication is less in F.I.R. than a statement made
to Police. If the commission of a crime is reported soon after the act there is very little time for any
distortion or embellishment. F.I.R. provides a check on the undesirable tendency on the part of the
prosecution to fill the gaps on their own. If the prosecution tries to fit in certain fact in the given
F.I.R., the same can be checked up in the light of F.I.R.
(iii) F.I.R. provides the initial groundwork on the basis of which the entire investigation and
prosecution will be conducted. As soon as the F.I.R. regarding a cognizable offence is received, the
machinery for investigation comes into motion at once. F.I.R. guides the direction of investigation
and recording of statement of a person is after shoot of F.I.R.
Investigation and Arrest
An investigation comprises of various steps: Proceeding to the spot; Ascertainment of facts and
circumstances of case; discovery and arrest of the suspected offender; Collection of evidence
(examination of various persons including the accused, search and seizure, etc.); Formation of
opinion as to whether it is a case to place the accused before a Magistrate for trial and, thus, filing of
a charge-sheet.
Procedure for Investigation (Sec. 157)
Sec. 157 provides the manner in which investigation is to be conducted where the commission of a
cognizable offence is suspected and authorizes an officer-in-charge of a police station not to
investigate if he considers that there is no sufficient ground for such investigation. Further, this
section requires that immediate intimation of every complaint/ information of the commission of
cognizable offence shall be sent to the Magistrate having jurisdiction [Om Prakash v State AIR 1974
SC 1983].
Under Sec. 157 (1), the police can proceed to investigate on the information received from any
person as to the commission of any cognizable offence, or even without any such information, if
they have reason to suspect the commission of any cognizable offence. There are two circumstances
in which it is not necessary for the S.H.O. to proceed in person or depute a subordinate officer to
make an investigation on the spot: (1) when the information as to the commission of the offence is
given against any person by name and the case is not of a serious nature [Proviso (a) to Sec. 157
(1)]; (ii) when it appears to the S.H.O. that there is no sufficient ground for entering on an
investigation [Proviso (b) to Sec. 157 (1)].
If, from information received or otherwise, an officer-in-charge of a police station has reason to
suspect the commission of an offence which he is empowered under Sec. 156 to investigate, he shall
forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence
upon a police report [Sec. 157(1)]. This provision is really designed to keep the Magistrate
informed of the investigation of a cognizable offence so as to be able to control the investigation and
if necessary give appropriate direction under Sec. 159 [Pala Singh v State of Punjab (1972) 2 SCC
640]. The words or otherwise' are wide enough to include every source of information other than
that furnished and recorded under Sec. 154 (F.I.R.).
Thus, the police officer acting under Sec. 157(1) is required to send a report to the Magistrate
having jurisdiction over the matter, stating that a cognizable offence is suspected to have been
committed and that he has taken up the investigation himself. The object of the report is to enable
the Magistrate to have an early information of any serious case so that he can act himself if need be.
The failure to send such a report is a serious neglect of duty on the part of the police officer and is
likely to result in failure of justice (as it lays the police open to the suspicion of concocting false.
evidence) (Hafiz Mohd. v Emperor AIR 1931 Pat 150). However, in the absence of any prejudice to
the accused, the omission to send the report does not vitiate the trial.
Effect of Delay In Sending Report to the Magistrate
The importance of prompt dispatch of a copy of the F.I.R. to a Magistrate can be hardly
overemphasized. The "extraordinary delay" in sending the F.I.R. is a circumstance which provides a
legitimate basis for suspecting that the report was recorded much later than the stated date and
about affording sufficient time to the prosecution to introduce improvements and embellishments
and set up a distorted version of the occurrence [Ishwar Singh v State of U.P. AIR 1976 SC 2423].
The delay contemplated under Sec. 157 for doubting the authenticity of the FIR is not every delay
but only extraordinary and unexplained delay [Anil Rai v State of Bihar AIR 2001 SC 3713].
However, delay in dispatch of the F.I.R. to the Magistrate would not affect the prosecution case
unless any prejudice was caused to the accused on account of such delay [Ram Rao v State, 1996
CrLJ 112 (Bom)]. Further, cogent and reasonable explanation for the delay in dispatch of F.I.R. is not
a circumstance which can throw out the prosecution case in its entirety [Sarwan Singh v State of
Punjab AIR 1976 SC 2304].
Commencement of Investigation
Investigation includes all proceedings under the Code for the collection of evidence conducted by a
police officer or by any person other than a Magistrate, who is authorized by the Magistrate in this
behalf [Sec. 2(h)]. Broadly speaking, the investigation of an offence consists of:
(I) Proceeding to the place of offence;
(ii) Ascertainment of the facts and circumstances of the case;
(ii) Discovery and arrest of the suspected offender;
(iv) Collection of evidence relating to the commission of the offence which may consist of:
(a) the examination of various persons, including the accused, and the reduction of their statements
into writing if the police officer thinks fit
(b) the search of places or seizure of things considered necessary for the investigation or trial;
(v) Formation of the opinion as to whether on the materials collected there is a case to place the
accused before a Magistrate for trial, and if so, taking the necessary steps for the same by the filing
of a charge-sheet [Navin Chandra v State of Meghalaya 2000 (4)Recent Cr. Rep].
It may be noted that a preliminary inquiry prior to the registration of the case even if by a D.S.P. is
not part of investigation. An 'inquiry' is never conducted by the police even though in common
parlance one talk of police inquiries.
Sec. 157(1) lays down that after sending a report to a Magistrate, the officer-in-charge of a police
station shall proceed in person, or shall depute his subordinate officer to proceed to the spot to
investigate the facts and circumstances of the case; and if necessary, to take measures for the
discovery and arrest of the offender. However, he need not proceed in person or depute a
subordinate officer when information as to the commission of any such offence is given against any
person by name and the case is not of a serious nature [Proviso (a) to Sec. 157(1)]. Further, if it
appears to him that there is no sufficient ground for entering on an investigation, he shall not
investigate the case [Proviso (b)]. Sec. 157(2), however, lays down that he shall state in his report
to the Magistrate his reasons for not fully complying with the requirements of sub-sec. (1). Further,
in relation to the case mentioned in proviso (b), the officer shall also forthwith notify to the
informant (if any) the fact that he will not investigate the case.
The officer-in-charge is given full discretion whether or not to investigate the case. He is not bound
to act on the information where no prima facie case has been made out [Majju v Lachman Prasad
AIR 1924 All 535]. The commencement of an investigation is subject to the following two
conditions: (i) first the police officer should have reason to suspect the commission of a cognizable
offence and (ii) secondly, he has to satisfy himself, subjectively as to the existence of sufficient
grounds for entering on investigation [State of Haryana v Bhajan Lal, 1992 CrLJ 527 (SC)].
The investigating officer need not follow each and every suggestion made during investigation
[Kirtan Bhuyan v State of Orissa AIR 1992 SC 1579]. If he makes a wrong assessment as to the
seriousness of the case, the superior police officer through when the report is sent to the
Magistrate, can always give appropriate directions, to him to set right the course of his action.
Further, the provision of informing the informant about the non investigation of the case would
enable the informant to approach a Magistrate or a superior police officer for redress, if he feels
aggrieved.
Under Sec. 159, the Magistrate receiving the report of a police officer under Sec. 157, may direct an
investigation, or if he thinks fit, may at once proceed to depute any subordinate magistrate to
proceed to hold a preliminary enquiry. This provision does not confer a magistrate a general power
to direct investigation. The power to direct investigation is to be used when it appears from the
police report under Sec. 157 that the police are neglecting their duties. The power of the police to
investigate any cognizable offence is uncontrolled by the magistrate, and it is only in cases where
the police decide not to investigate the case that the magistrate can intervene and either direct
investigation, or in the alternative, himself proceed to enquire into the case [S.N. Sharma v Bipen
Kumar (1970) ISCC 653].
Amendment of Sec. 157 (Procedure for investigation in relation to an offence of rape)
In Sec. 157(1), after the proviso, the following proviso shall be inserted [2008 Amendment to the
Code], namely
"Provided further that in relation to an offence of rape, the recording of statement of the victim
shall be conducted at the residence of the victim or in the place of her choice and as far as
practicable by a woman police officer in the presence of her parents or guardian or near relatives or
social worker of the locality."
Arrest: Procedure and rights of Arrested Person
(In State of Haryana v Dinesh Kumar [(2008) 3 SCC 222], the Apex Court observed that the
expression 'arrest' has neither been defined in the Code of Criminal Procedure nor in the Indian
Penal Code or any other enactment dealing with criminal offences. The only indication as to what
would constitute arrest may perhaps be found in Sec. 46 of the Code, which describes the mode in
which arrests are to be made.
An arrest consists of taking into custody of another person under authority empowered by law, for
the purpose of holding or detaining him to answer a criminal charge and preventing the
commission of a criminal offence. However, a person against whom no accusation of crime has been
made may be arrested/ detained under a statute for certain purposes like removal in safe custody
from one place to another (viz. removal of a minor girl from a brothel). It may be noted that
'custody' and 'arrest' are not synonymous terms. Taking of a person into judicial custody is
followed after the arrest of the person by the Magistrate on appearance or surrender. In every
arrest, there is custody but not vice-versa [Directorate of Enforcement v Deepak Mahajan AIR 1994
SC 1775]. Thus, mere taking into custody of a person by an authority empowered to arrest may not
necessarily amount to arrest.
The Code contemplates two types of arrests: (i) arrest made in pursuance of a warrant issued by a
Magistrate, and (ii) arrest made without such a warrant but made in accordance with some legal
provision permitting such an arrest. While the first type of arrest is made by the police, the second
type of arrest could be made by the police, or a private person, or by the Magistrate himself (Sec.
44). The Code exempts the members of Armed Forces from being arrested for anything done by
them in discharge of their official duties, except after obtaining the consent of the government (Sec.
45).
Any private individual may arrest a person only when the person is a proclaimed offender and the
person commits a non-bailable offence and cognizable offence in his presence (Sec. 43). Any
Magistrate (whether Executive or Judicial) may arrest a person without a warrant. Sec. 44(1) lays
down that when any offence is committed in the presence of a Magistrate, within his local
jurisdiction, he may himself arrest or order any person to arrest the offender and also to commit
him to custody. Sec. 44(2) lays down that a Magistrate may at any time arrest (or direct the arrest
in his presence) a person for whom arrest he is competent at the time and in the circumstances to
issue a warrant.
Sec. 46 describes the mode in which arrests are to be made (whether with or without a warrant). In
making an arrest the police officer/ other person making the same actually touches or confines the
body of the person to be arrested unless there be a submission to custody by word or action [Sec.
46(1)]. Mere utterance of words or gesture or flickering of eyes does not amount to arrest; actual
seizure or touch of person's body with a view to arresting is necessary.
When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate the
person so arrested shall not be handcuffed unless the police have obtained orders from the
Magistrate in this regard. Sec. 49 lays down that the person arrested shall not be subjected to more
restraint than is necessary to prevent his escape. In other words, unnecessary restraint and
physical inconvenience, like tying of hands and feet, is not to be resorted to, unless it is absolutely
necessary to do so.
The person making an arrest may use all means' necessary to make the arrest if the person to be
arrested resists or attempts to evade the arrest [Sec: 46(2)]. Sec. 46(3) lays down that the power to
use necessary force for making an arrest shall not extend to causing the death of a person who is
not accused of an offence punishable with death or imprisonment for life.
A police officer may, for the purpose of arresting without warrant any person whom he is
authorized to arrest, pursue such a person into any place in India (Sec. 48). Hence the arrest of a
person by the police officer, investigating an offence, in pursuit of an offender is legal though it is
made outside his circle.
RIGHTS OF ARRESTED PERSONS
Arrest of a person is made in order to ensure his presence at the trial in connection with any
offences to which he is directly or indirectly connected and/ or to prevent the commission of a
criminal offence. In a free society like ours, law is quite zealous of the "personal liberty" of every
individual and does not tolerate the detention of any person without legal sanction. Article 21 of the
Constitution provides: "No person shall be deprived of his life or personal liberty except according
to procedure established by law." The procedure contemplated by this article must be 'right, just
and fair' and not arbitrary, fanciful or oppressive.
(1) Arrest Power Conferred on Police and Safeguards²
Arrest Without Warrant by Police [Secs. 41-42]
There might be circumstances where prompt and immediate arrest is needed and there is no time
to approach a magistrate and obtain a warrant. For instance, in a case where a serious crime has
been perpetrated by a dangerous person and there is every chance of the person absconding unless
immediately arrested. Similarly, there may be occasions where preventive action may be necessary
in order to avert the danger of sudden outbreak of crime.
Cases where a police officer may arrest a person without warrant are specified in Schedule I of the
Code. Sec. 41(1) enumerates nine categories of offences and cases relating thereto where a police
officer may arrest any person without an order from a Magistrate and without a warrant. This
section is a depositary of general powers of the police officer to arrest but this power is subject to
certain other provisions contained in the Code.
Sec. 41(1) says down that a police officer may arrest without a warrant any person:
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion exists in this
regard, or
(b) who is found in possession of any implement without any lawful excuse, or house-breaking (c)
who has been proclaimed as an offender, either under the Code or by order of the State
Government, or
(d) who is found in possession of property reasonably suspected to be stolen, and who may be
reasonably suspected of having committed an offence with reference to such property, or
(e) who obstructs a police officer in the discharge of his duties, or who has escaped or attempts to
escape from lawful custody, or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union, or
(g) who has been concerned or reasonably suspected to be concerned in any act committed at a
place outside India which if committed in India would be punishable as an offence for which he
would be liable to be apprehended or detained in custody in India, or
(h) who is a released convict committing a breach of any rule made under Sec. 356(5) of the Code,
or
(i) for whose arrest any requisition (written or oral) is received from another police officer
competent to arrest that person without a warrant, provided that the requisition specifies the
person to be arrested and the offence or other cause for which the arrest is to be made.
In addition, a police officer in charge of a police station may, as a preventive measure, arrest
without warrant any person belonging to one or more of the categories of persons specified in Sec.
109 or Sec. 110, e.g. habitual robbers, house-breakers, thieves; or habitual receiver of stolen
property; habitual kidnapper/ abductor; etc. [Sec. 41(2)]. A person who is alleged to have been in
possession of an illicit arm once upon a time can neither be called presently an accused nor a
suspect thereof [Sham Lal v Ajit Singh, 1981 CrLJ NOC 150 (P&H)].
2008/2010 Amendments of Sec. 41 (Powers of arrest conferred upon the police officer must be
exercised after reasonable care)
In Sec. 41(1), for clauses (a) and (b), the following clauses shall be substituted namely "
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been
received, or a reasonable suspicion exists that he has committed a cognizable offence punishable
with imprisonment for a term which may be less than seven years or which may extend to seven
years whether with or without fine, if the following conditions are satisfied, namely
(I) The police officer has reason to believe on the basis of such complaint, information, or suspicion
that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary:
(a). to prevent such person from committing any further offence; or
(b) For proper investigation of the offence; or
(c.) To prevent such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner; or
(d) To prevent such person from making 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 the police officer; or
(e) As unless such person is arrested, his presence in the Court whenever required cannot be
ensured;
and the police officer shall record while making such arrest, his reasons in writing;
Proviso: "Provided that a police officer shall, in all cases where the arrest of a person is not required
under the provisions of this sub-section, record the reasons in writing for not making the arrest."
[Note: This proviso has been inserted by the 2010 Amendment to the Code.]
(ba) against whom credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more than seven years
whether with or without fine or with death sentence and the police officer has reason to believe on
the basis of that information that such person has committed the said offence";
For Sec. 41(2), the following sub-section shall be substituted, namely

"(2) Subject to the provisions of Sec. 42, no person concerned in a non-cognizable offence or against
whom a complaint has been made or credible information has been received or reasonable
suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a
Magistrate,"
Insertion of New Secs. 41-A, 41-B, 41-C and 41-D (Arrest provisions) by 2008/2010 Amendments
After Sec. 41, the following new sections shall be inserted, namely - "41-A. Notice of appearance
before police officer
(1) The police officer may, in all cases where the arrest of a person is not required under the
provisions of Sec. 41(1), issue a notice directing the person against whom a reasonable complaint
has been made, or credible information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence, to appear before him or at such other place as may be specified
in the notice.
[2010 Amendment: For the words "The police officer may", the words "The police officer shall"
shall be substituted.]
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with
the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested
in respect of the offence referred to in the notice unless, for reasons to be recorded, the police
officer is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for
the police officer to arrest him for the offence mentioned in the notice, subject to such orders as
may have been passed in this behalf by a competent Court.
[2010 Amendment: For sub-sec. (4), the following sub-sec. shall be substituted, namely: "(4) Where
such person, at any time, fails to comply with the terms of the notice or is unwilling to identify
himself, the police officer may, subject to such orders as may have been passed by a competent
Court in this behalf, arrest him for the offence mentioned in the notice."]
41-B. Procedure of arrest and duties of officer making arrest- Every police officer while making an
arrest shall -
(a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
(b) prepare a memorandum of arrest which shall be
(i) attested by at least one witness, who is a member of the family of a person arrested or a
respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that
he has a right to have a relative or a friend named by him to be informed of his arrest.
41-C Control room at districts -
(1) The State Government shall establish a police control room (a) in every district; and (b) at State
level.
(2) The State Government shall cause to be displayed on the notice board kept outside the control
rooms at every district, the names and addresses of the persons arrested and the name and
designation of the police officer who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to time,
details about the persons arrested, nature of the offence with which they are charged and maintain
a database for the information of the general public.
41-D. Right of arrested person to meet an advocate of his choice during interrogation - When any
person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his
choice during interrogation, though not throughout interrogation."
Arrest How Made (Secs. 46-49)
Sec. 46 describes the mode in which arrests are to be made (whether with or without a warrant). In
making an arrest the police officer/ other person making the same actually touches or confines the
body of the person to be arrested unless there be a submission to custody by word or action [Sec.
46(1)]. Mere utterance of words or gesture or flickering of eyes does not amount to arrest; actual
seizure or touch of person's body with a view to arresting is necessary. It need not be by
handcuffing a person, but could be complete even by spoken words if a person submits to the
custody [Birendra K. Rai v UOI, 1992 CrLJ 3866 (All)].
In Deoman Upadhya v State (AIR 1960 SC 1131), the accused approached a police officer
investigating the offence. He offered to give information leading to the discovery of fact and also
having a bearing on the charge which might be made against him. Held that he had submitted to the
custody. Submission to custody may be by express words or via conduct. If the accused proceeds
towards the police station as directed by a police officer, he would be held to have submitted to the
custody of the police officer [Supdt. and Remembrancer of Legal Affairs v Kaloo Khan AIR 1948 Cal
68].
Amendment of Sec. 46 (Police officer not to touch the person of the woman for making her arrest)
In Sec. 46(1) of the principal Act, the following proviso shall be inserted. namely -
Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary,
her submission to custody on an oral intimation of arrest shall be presumed and, unless the
circumstances otherwise require or unless the police officer is a female, the police officer shall not
touch the person of the woman for making her arrest.")
Power to Use Force [Secs. 46(2)-(3) & 49]
The person making an arrest may use all means' necessary to make the arrest if the person to be
arrested resists or attempts to evade the arrest [Sec. 46(2)]. The words "all means" are very wide
and include the taking of assistance from others in effecting the arrest [Nazir AIR 1951 All 3 (F.B.)].
Sec. 46(3) lays down that the power to use necessary force for making an arrest shall not extend to
causing the death of a person who is not accused of an offence punishable with death or
imprisonment for life. Thus, where fire was opened to disperse an unlawful assembly and death of
an innocent person was caused, Sec. 46 could not be invoked for the protection of the police officer
[Karan Singh v Haradayal Singh, 1979 CrLJ 1211 (Punj)].
Power to Search a Place [Sec. 47]
An occupier of a house/place is under a legal duty to afford to the police, and to any person acting
under a warrant of arrest, all reasonable facilities to search the house/ place for the purpose of
making arrests [Sec. 47(1)]. If ingress to such a place cannot be freely obtained, the police officer
(or other person executing a warrant) can also break open any door or window of such
house/place, whether that of the person to be arrested or of any other person, for the purpose of
entering the same and search therein. Such action could also be taken in any case in which a
warrant may issue, but cannot be obtained without affording the person to be arrested an
opportunity of escape [Sec. 47(2)].
(3) Right to Know the Grounds of Arrest3 [Sec. 50-50A]
The first and foremost requirement of lawful arrest is the notification of the reasons of arrest along
with the charges against him to the arrestee. Sec. 50 provides that the person arrested without any
warrant should forthwith be intimated the full particulars of the offence and the grounds for his
arrest by the police officer or other person making the arrest [sub-sec. (1)], and where the offence
is a bailable one, of his right to be released on bail [sub sec. (2)]. Similarly, in case of arrest to be
made under a warrant, Sec. 75 provides that "the police officer or other person executing a warrant
of arrest shall notify the substance thereof to the person to be arrested."
Our Constitution has conferred on the right to know the grounds of arrest the status of a
fundamental right. Article 22 (1) provides: "No person who is arrested shall be detained in custody
without being informed as soon as may be, of the grounds for such arrest." Sec. 50 of the Code is in
conformity with Art. 22(1). An arrestee must be informed of the grounds of his arrest with greatest
dispatch 'as soon as possible', however, it may not be immediately. The words, as used in Art. 22(1),
mean 'as early as is reasonable' in the circumstances of a particular case.
Sec. 50, being mandatory, confers a valuable right and non-compliance with it amounts to disregard
of the procedure established by law [Govind Prasad v State, 1975 Cr LJ 1249 (Cal). Making known to
the accused grounds of his arrest is a constitutional requirement and failure to comply with this
requirement renders the arrest illegal [Ajit Kumar v State of Assam, 1976 Cr. L.J. 1302 (Gau)]. The
timely information helps the arrested person in several ways, viz. opportunity to clarify any
mistake/ misunderstanding in the mind of the executing authority, to move the competent court for
bail or in appropriate circumstances for a writ of habeas corpus, to begin to prepare his defence. It
is not necessary to furnish full details of the offence, but sufficient particulars must be furnished to
enable the arrestee to know and understand as to why he was arrested. The court can go into the
sufficiency or otherwise of the grounds so furnished. The detention becomes unlawful if the
grounds given were not proper and sufficient [In re Madhu Limaye AIR 1969 SC 1014].)
(4) Production Before a Magistrate without Delay [Secs. 56-57]
The arrested person should be promptly produced before a Judge/Magistrate. This right has been
created to prevent the arrest from becoming means of compelling the people to give information
and to enable the judicial authority independent of the police to determine the question of bail/
discharge. Sec. 56 lays down that in case of an arrest without warrant, the police officer is required,
without unnecessary delay and subject to the provisions regarding bail, to produce the arrested
person before a Magistrate having jurisdiction in the case or before the officer-in-charge of a police
station.
Thus, the person making the arrest must bring the arrested person before a judicial officer without
necessary delay. It is also provided that the arrested person should not be confined in any place
other than a police station before he is taken to the magistrate.
Sec. 57 lays down that no police officer shall detain in custody a person arrested without warrant
for a longer period than under all the circumstances of the case is reasonable, and such period shall
not (in the absence of a special order of a Magistrate under Sec. 167) exceed 24 hours exclusive of
the time necessary for the journey from the place of arrest to the Magistrate's court. The right has
also been incorporated in the Constitution as one of the fundamental rights [Art. 22(2)].
This right has been created with a view (i) to prevent arrest and detention for the purpose of
extracting confessions, or as a means of compelling people to give information, (ii) to prevent police
stations being used as though they were prisons, and (iii) to afford an early recourse to a judicial
officer independent of the police on all questions of bail or discharge. This right is not merely a
formality but it is substantial protection accorded to an arrestee so that if there is no case against
him he may be released forthwith or released on bail [In re Madhu Limaye case].
The precaution laid down in Sec. 57 ensures that the Magistrate shall have seisin of what is going on
and some knowledge of the nature of the charge against the accused, however incomplete the
information may be [Manoj v State of M.P. (1999) 3 SCC 715]. The Supreme Court has strongly
urged upon the State and its police authorities to see that this constitutional/ legal requirement
must be scrupulously observed. This healthy provision enables magistrate to keep check over the
police investigation [Khatri (II) v State of Bihar (1981) 1 SCC 627]. If a police officer fails to produce
an arrested person before a magistrate within 24 hours of arrest, he shall be guilty of wrongful
detention (5) Right to Consult a Legal Practitioner/Legal Aids The Constitution as well as the Code
recognizes the right of every arrested person to consult a legal practitioner of his choice [Art. 22(1)
of the Constitution; Sec. 303 of the Code]. Art. 22(1) of the Constitution provides that no person
who is arrested shall be denied the right to consult a legal practitioner of his choice. Sec. 303, Cr.
P.C. also provides that any person against whom proceedings are instituted under the Code may of
right be defended by a pleader of his choice.
The right of an arrested person to consult his lawyer begins from the moment of his arrest [Moti Bai
v State AIR 1954 Raj 241] i.e. pre-trial stage. The arrestee could also have consultation with his
friends or relatives [Francis Coralie v U.T. of Delhi]. The consultation with the lawyer may be in the
presence of police officer but not within his hearing [Joginder Kumar v State of U.P. (1994) 4 SCC
620].
(6) Right to be Examined by a Medical Practitioner [Secs. 54,55A]
Sec. 54, Cr. P.C., gives the accused the right to have him medically examined to enable him to defend
and protect himself. It is considered desirable and necessary "that a person who is arrested should
be given the right to have his body examined by a medical officer when he is produced before a
magistrate or at any time when he is under custody, with a view to enabling him to establish that
the offence with which he is charged was not committed by him or that he was subjected to physical
injury.
" Amendment of Sec. 54 (by 2008 Amendment): "(1) When any person is arrested, he shall be
examined by the medical officer in the service of Central or State Governments and in case the
medical officer is not available by a registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall be made
only by or under the supervision of a female medical officer, in case the female medical officer is not
available, by a female registered medical practitioner.
(2) The medical officer or a registered medical practitioner so examining the arrested person shall
prepare the record of such examination, mentioning therein any injuries or marks of violence upon
the person arrested, and the approximate time when such injuries or marks may have been
inflicted.
(3) Where an examination is made under sub-sec. (1), a copy of the report of such examination shall
be furnished by the medical officer or registered medical practitioner, as the case may be, to the
arrested person or the person nominated by such arrested person."
Even in cases where accused does not make any prayer it is the duty of the Magistrate to inform the
arrested person about his right to get himself medically examined in case he has complaints of
physical torture or maltreatment in police custody [Sheela Barse v State of Maharasthra, 1983 CrLJ
642 (SC)]. The non-compliance of this important provision by the Magistrates has prompted the
higher courts to issue such directions. In fact, it is the ignorance of this right which makes an
arrestee unable to exercise it [Mukesh Kumar v State (Delhi), 1990 CrLJ 1923 (Del)]. In this case,
also held that the procedure adopted by the Magistrate in examining the body of the accused person
himself and then dismissing the application on his observation that they were seen in normal
posture was wholly unwarranted and erroneous.
insertion of new Sec. 55-A
After Sec. 55 of the principal Act, the following section shall be inserted, namely -
"55-A. Health and safety of arrested person - It shall be the duty of the person having the custody of
an accused to take reasonable care of the health and safety of the accused."
Thus, it is obligatory on the part of the person having the custody of the accused to take reasonable
care of the health and safety of the accused. Sec. 55-A attempt to take care of "custodial violence"
(torture, rape, death in police custody/lock-up) to some extent.
(7) Identification of Person Arrested [Sec. 54-A]

A new section 54-A has been inserted by the 2005 Amendment, namely:
54-A. Identification of person arrested - Where a person is arrested on a charge of committing an

offence and his identification by any other person or persons is considered necessary for the
purpose of investigation of such offence, the court having jurisdiction, may on the request of the
officer in charge of a police station, direct the person so arrested to subject himself to identification
by any person or persons in such manner as the court may deem fit."
(8) Arrest to be made strictly according to the Code [Sec. 60-A]
Insertion of new Sec. 60-A (by 2008 Amendment): After Sec. 60 of the principal Act, the following
section shall be inserted, namely -
"60-A. Arrest to be made strictly according to the Code - No arrest shall be made except in
accordance with the provisions of this Code or any other law for the time being in force providing
for arrest."
D.K. BASU V STATE OF W.B. (AIR 1997 SC 610)
[In this case, the Supreme Court took a serious note of custodial violence and death in police lock-
up. To check the abuse of police power, transparency of public action and accountability are two
possible safeguards.
The Apex Court laid down guidelines (as preventive measures) to be followed in all cases of arrest
or detention till legislative measures are taken.]
The matter was brought before the court by Dr. D.K. Basu, Executive Chairman of the Legal Aid
Services, a NGO, W.B. through a PIL.. He addressed a letter to the Chief Justice drawing his attention
to certain news items published in the newspapers regarding deaths in police lock-ups and custody.
This letter was treated as a writ petition by the Court.
The Supreme Court observed as follows:
(i) Custodial violence (torture, rape, death in police custody/lock-up) is a matter of deep concern. It
infringes Art. 21 as well as basic human rights and strikes a blow at rule of law. It is aggravated by
the fact that it is committed by persons who are supposed to be protectors of the citizens, in the
four walls of a police station or lock-up, the victim being totally helpless.
(ii) Custodial violence is perhaps one of the worst crimes in a civilised society governed by the rule
of law. The precious right guaranteed by Art. 21, cannot be denied to convicts, under-trials, detenus
and other prisoners in custody, except according to the procedure established by law. The right to
life of a citizen cannot be put in 'abeyance' on his arrest. Any form of torture or cruel, inhuman or
degrading treatment would fall within the inhibition of Art. 21, whether it occurs during
investigation, interrogation or otherwise.
(iii) The right to interrogate the detenus, culprits or arrestees in the interest of the nation, must
take precedence over an individual's right to personal liberty. The Latin maxim salus populi
suprema lax (safety of the people is the supreme law) and salus republicae suprema lax (safety of
the State is the supreme law) coexist and lie at the heart of the doctrine that the welfare of an
individual must yield to that of the community. The State's action, however, must be "right, just and
fair". Using any form of torture for extracting any kind of information would neither be right nor
just nor fair.
(iv) Interrogation though essential must be on scientific principles; "third-degree methods" are
totally impermissible. Challenge of terrorism must be met with innovative ideas and approach.
State terrorism is no answer to combat terrorism. Such terrorism would only provide legitimacy to
"terrorism". Thus, the interrogation and investigation into a crime should be in true sense
purposeful to make the investigation effective. However, it is true that in case of too much of
emphasis on protection of fundamental rights and human rights of hardened criminals, such
criminals may go scot-free and in the ultimate analysis the society would suffer. Therefore a
balanced approach is needed to meet the ends of justice (Society expect that police must deal with
the criminals in an effective manner and bring to book those who are involved in the crime).
(v) To check the abuse of police power, transparency of public action and accountability are two
possible safeguards. Further, the police force needs to be infused with basic human values and
made sensitive to the constitutional ethos. With a view to bring in transparency, the presence of
counsel of the arrestee at some point of time during the interrogation may deter the police from
using third-degree methods.
The Supreme Court laid down the following guidelines (as preventive measures) to be followed in
all cases of arrest or detention till legislative measures are taken:
(a) The police personnel carrying out the arrest and handling the interrogation should bear an
accurate and clear identification and name tags with their designations. The particulars of such
police personnel must be recorded in a register.
(b) The police officer carrying out the arrest shall prepare a "memo of arrest" at the time of arrest
and such memo must be attested by at least one witness (a member of arrestee's family or a
respectable person of the locality from where arrest is made). It shall also be countersigned by the
arrestee and shall contain the time and date of arrest.
(c) A person who has been arrested or detained shall be entitled to have one friend/relative/other
person known to him or having interest in his welfare being informed as early as possible.
(d) The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend/relative of arrestee lives outside the district/ town through the Legal Aid
Organization in the District and the police station of area concerned telegraphically within a period
of 8-12 hours after the arrest.
(e) The arrestee must be aware of his right to have someone informed of his arrest/detention as
soon as he is put under arrest/detained.
(f) 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 arrestee who has been informed of the
arrest and the name and particulars of the police officials in whose custody the arrestee is.
(g) 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. The "Inspection
Memo" must be signed by the arrestee and the police officer and its copy provided to arrestee.
(h) The arrestee should be subjected to medical examination by a trained 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 State/U.T. The Director should prepare such a panel for all tehsils and
districts as well.
(I) Copies of all the documents including the memo of arrest should be sent to the area Magistrate
for his record.
(j) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.
(k) A police control room should be provided at all district and State headquarters, where
information regarding arrest and place of custody of 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 made it clear that failure to comply with these requirements shall apart from rendering
the official concerned liable for departmental action, also render him liable to be punished for
contempt of court. The requirements, referred to above flow from Arts. 21 and 22(1) and need to be
strictly followed. These would apply also to other governmental agencies like Directorate of
Enforcement/Revenue Intelligence, Coastal Guard, CRPF, BSF, CISF, State Armed Police, Intelligence
agencies like IB, CBI, RAW, CID, Traffic Police, Mounted Police and ITBP.)
STATE OF HARYANA V DINESH KUMAR [(2008) 3 SCC 222]
[A person can be in custody not merely when the police arrest him, produces him before a
Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody
when he surrenders before the court and submits to its directions.
The High Court had erred in coming to a finding that the accused had never been arrested since he
had voluntarily appeared before the Magistrate and had been granted bail immediately.
In this case, the issue was what constitutes arrest and custody in relation to criminal proceedings.
In other words, whether the manner in which the respondent had appeared before the Magistrate
and was released without being taken into formal custody could amount to arrest. The respondent
without surrendering to the police had appeared before the Magistrate with his lawyer and was
immediately granted bail. The High Court held that since the accused had neither surrendered nor
had been taken into custody, it could not be said that he had actually been arrested. The Supreme
Court disagreed with the High Court. It held that even in such circumstances, the appearance of the
accused before the Magistrate amounts to arrest.
It may be noted that unless a person accused of an offence is in custody, he cannot move the court
for bail under Sec. 439, CrPC, which provides for release on bail of any person accused of an offence
and in custody.
The Supreme Court observed that the expression 'arrest' has neither been defined in the Code of
Criminal Procedure nor in the Indian Penal Code or any other enactment dealing with criminal
offences. The only indication as to what would constitute arrest may perhaps be found in Sec. 46 of
the Code, which describes the mode in which arrests are to be made. In making an arrest the police
officer/ other person making the same actually touches or confines the body of the person to be
arrested unless there be a submission to custody by word or action [Sec. 46(1)]. Mere utterance of
words or gesture or flickering of eyes does not amount to arrest; actual seizure or touch of person's
body with a view to arresting is necessary. It need not be by handcuffing a person, but could be
complete even by spoken words if a person submits to the custody [Birendra K. Rai v UOI, 1992
CrLJ 3866 (All)].
The Court cited the meaning of the arrest given in Halsbury's Laws of England: The word 'arrest'
when used in its ordinary and natural sense, means the apprehension or restraint or the
deprivation of one's personal liberty. The question whether the person is under arrest or not,
depends not on the legality of the arrest, but on whether he has been deprived of his personal
liberty to go where he pleases. When used in the legal sense in the procedure connected with
criminal offences, an arrest consists in the taking into custody of another person under authority
empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of
preventing the commission of a criminal offence. The essential elements to constitute an arrest in
the above sense are that there must be an intent to arrest under the authority, accompanied by a
seizure or detention of the person in the manner known to law, which is so understood by the
person arrested. In this connection, a debatable question that arises for our consideration is
whether the mere taking into custody of a person by an authority empowered to arrest would
amount to arrest of that person and whether the terms arrest and custody are synonymous.
ARNESH KUMAR V STATE OF BIHAR [(2014) 8 SCC 273]
[In this case, the Apex Court emphasized the need for caution in exercising the drastic power of
arrest by the Police and also by the Magistrates while authorizing detention of the accused. It would
be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction
reached after some investigation as to the genuineness of the allegation.
In short, the police officers do not arrest accused unnecessarily and Magistrate do not authorise
detention casually and mechanically.]
In this case, the Apex Court while reacting to an application for anticipatory bail in case of cruelty
against wife by husband or his relatives (Sec. 498A, IPC) noted: Power to arrest has become a handy
tool to the police officers who lack sensitivity or act with oblique motive. Law Commissions, Police
Commissions and this Court in a large number of judgments emphasized the need to maintain a
balance between individual liberty and societal order while exercising the power of arrest. Police
officers make arrest as they believe that they possess the power to do so. As the arrest curtails
freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest
should be made only because the offence is non-bailable and cognizable and therefore, lawful for
the police officers to do so. The existence of the power to arrest is one thing, the justification for the
exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify
the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission
of an offence made against a person. It would be prudent and wise for a police officer that no arrest
is made without a reasonable satisfaction reached after some investigation as to the genuineness of
the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of
arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation
of the 177th Report of the Law Commission submitted in the year 2001, Sec. 41 of the Code of
Criminal Procedure, in the present form came to be enacted.
From a plain reading of the aforesaid provision, it is evident that a person accused of offence
punishable with imprisonment for a term which may be less than seven years or which may extend
to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police officer before arrest, in
such cases has to be further satisfied that such arrest is necessary to prevent such person from
committing any further offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with such evidence in any
manner; or to prevent such person from making any inducement, threat or promise to a witness so
as to dissuade him from disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required cannot be ensured. These
are the conclusions, which one may reach based on facts.
Law mandates the police officer to state the facts and record the reasons in writing which led him to
come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law
further requires the police officers to record the reasons in writing for not making the arrest. In
pith and core, the police office before arrest must put a question to himself, why arrest? Is it really
required? What purpose it will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest
needs to be exercised. In fine, before arrest first the police officers should have reason to believe on
the basis of information and material that the accused has committed the offence. Apart from this,
the police officer has to be satisfied further that the arrest is necessary for one or the more
purposes envisaged by sub clauses (a) to (e) of clause (1) of Sec. 41.
An accused arrested without warrant by the police has the constitutional right under Article 22(2)
of the Constitution of India and Sec. 57, Cr.PC to be produced before the Magistrate without
unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the
journey. During the course of investigation of a case, an accused can be kept in detention beyond a
period of 24 hours only when it is authorised by the Magistrate in exercise of power under Sec. 167
Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom
of citizens and needs to be exercised with great care and caution. Our experience tells us that it is
not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner.)
Search of Arrested Persons [Sec. 51]
Sec. 51 makes provision regarding search of the arrested person and making an inventory of the
articles found upon him. Whenever a person who is arrested cannot legally be admitted to bail, or is
unable to furnish bail, the police officer making the arrest (or the police officer to whom the
arrested person is made over after arrest by a private person) may search such a person, and place
in safe custody all articles, other than necessary wearing apparel, found upon him. A receipt
showing the articles so seized shall be given to such a person [sub-sec. (1)]
When Search-Warrant May be Issued [Sec. 93]
Under Sec. 93, a search-warrant can be issued on the failure of a person to produce articles on
summons. There are six circumstances in which a search warrant may be issued, three are
mentioned in Sec. 93, and three in Secs. 94, 95 and 97.
Sec. 93(1) empowers the court to issue a search-warrant in the following three cases:
(a) Where the court has reason to believe that the person to whom a summons or order (under Sec.
91) or a requisition (under Sec. 92) has been addressed will not produce such document/thing: or
(b) Where such document/thing is not known to the court to be in the possession of any person; or
(c) Where the court considers that the purpose of any inquiry, trial, etc. would be served by a
general search or inspection.
The search-warrant may be general or restricted in its scope as to any place. or part thereof [Sec.
93(2)]. A District Magistrate or Chief Judicial Magistrate is empowered to grant a warrant to search
for a document, parcel or other thing in the custody of postal or telegraph authority [Sec. 93(3)].
Sec. 93 provides for two kinds of searches viz. particular and general. When the court is unaware
not only of the person but even the place where the documents may be find, a 'general' search is
necessary. This section contemplates the production of some specified thing/object which may be
deemed essential to the conduct of any inquiry, and to the conviction of the accused person, viz. a
bloody knife, a forged document, a piece of stolen property, etc. The court has discretion to issue a
search-warrant, however, the Magistrate must apply his mind and give reasons. Mere suspicion is
no ground by itself for the issue of a search-warrant. Further, there cannot be a general fishing
inquiry. Sec. 93 has no application in non-criminal matters.
Constitutional Validity of Search-Warrants
A search-warrant under Sec. 93 cannot be issued in respect of documents or property known to be

in possession of the accused person. However, a search of the premises occupied by the accused
does not amount to compulsion on him to give evidence against himself and therefore is not
violative of Art. 20(3) of the Constitution [KS. Kuttan Pillai v Ramakrishnan (1980) 1 SCC 264]. The
court in this case observed that when a general search-warrant is issued, in execution of it the
premises even in possession of the accused can be searched and documents found therein can be
seized irrespective of the fact that the documents may contain some statement made by the accused
upon his personal knowledge and which when proved may have the tendency to incriminate him. A
"passive submission" to search cannot be styled as a compulsion on the accused to submit to search
and if anything is recovered during such search which may provide incriminating evidence against
the accused it cannot be styled as a compelled testimony.
Bail
The object of arrest and detention of the accused person is primarily to Secure his appearance at
the time of trial and to ensure that in case he is found guilty he is available to receive the sentence.
If his presence at the trial could be reasonably ensured otherwise than by his arrest and detention,
it would be unjust and unfair to deprive him of his liberty during the pendency of criminal
proceedings against him.
Definition of Bail: Bailable and Non-bailable Offences
Bail has not been defined under the Cr. P.C., 1973. It has been defined in the Law Lexicon as
'security for the appearance of the accused person, on giving which, he is released pending trial or
investigation. The word "bail' means to set at liberty a person arrested or imprisoned on security
being taken of his appearance in the court on a particular day. The word 'bail' covers release on
one's own bond.
Bail' connotes the process of procuring the release of an accused charged with certain offence by
ensuring his future attendance in the court for trial and compelling him to remain within the
jurisdiction of the court [Nathurasu v State, 1998 Cri LJ 1762 (Mad)].)
Sec. 436. In what cases Bail to be taken
(Sub-sec. (1) Where there are no reasonable grounds to believe that the accused was involved in
the commission of a non-bailable offence, the accused shall be released on bail under Sec. 436(1).
As soon as it appears that the accused person is prepared to give bail, the police officer or the court
is bound to release him. It would even be open to the officer or the court to discharge such person
on executing his bond without sureties instead of taking bail from him [First proviso to Sec.
436(1)].
In Morit Malhotra v State of Rajasthan, 1991 Cri. LJ 806 (Raj). the accused was granted bail under
Sec. 436 by the police. But when he appeared before the court he was advised to take bail from the
court. He challenged the orders in the High Court which ruled that it is not necessary for an accused
to get bail granted by the court if he has already been granted bail by the police.
Amendment of Sec. 436 (by 2005 Amendment)): In respect of bailable offences, a person has to
remain in jail for his inability to furnish bail, till the case is disposed of. Sec. 436(1) has been
amended to make a mandatory provision that if the arrested person is accused of a bailable offence
and he is an indigent and cannot furnish surety, the court shall release him on his execution of a
bond without sureties. Thus, the amendment has made it compulsory for the police to release a
person accused of a bailable offence if he or she cannot afford to furnish surety. This is a positive
provision in favour of the accused. The Explanation added after the proviso provides the key for the
court to ascertain the capability of the accused to provide surety. It provides that if he is incapable
of providing surety for a week after his arrest that may be an indication of his being indigent.
Sec. 436 is an imperative or mandatory provision. Under it, the Magistrate is bound to release the
person on bail or recognizance. The right to claim bail granted by Sec. 436 in a bailable offence is an
absolute and indefeasible right. In bailable offences there is no question of discretion in granting
bail as the words of Sec. 436 are imperative [Rasiklal v Kishore Khanchand Wadhwani AIR 2009 SC
13411)
MOTI RAM V STATE OF M.P. (AIR 1978 SC 1594)
The right to be released on bail under Sec. 436(1) cannot be nullified indirectly by fixing too high
the amount of bond or bail bond to be furnished by the person seeking release (especially
poor/indigent).
The legal literature, Indian and Anglo-American, on bail jurisprudence lends countenance to the
contention that bail is comprehensive enough to cover release on one's own bond with or without
sureties.
This case shows how the bail can be made impossible by requiring the petitioner to execute
sureties in the sum much beyond what he can manage. The ordinary labourer was asked to pay a
sum of Rs. 10,000. The Supreme Court observed that "the Magistrate has not fully appreciated our
Constitution under which "We, the people of India" is meant for the butcher, the baker, and the
candle-stick maker shall we add, the bonded labour and pavement-dweller.
Also, in this case, the magistrate refused to accept suretyship of the petitioner's brother because he
and his assets were in another district. The Supreme Court held it to be a wrong decision by
reasoning that what a person of one State would do if arrested in other State'? One cannot have
sureties owning properties in distant places. Judicial disruption of Indian unity is surest achieved
by such political allergies. Sec. 440(1) specially provides that the amount of every such bond shall
be fixed with due regard to the circumstances of the case and shall not be excessive.
The Apex Court observed that the grant of bail can be made impossible, inconvenient and expensive
if the court is powerless to dispense with surety or to receive an Indian bailor across the district
borders as good or if the sum is so excessive that to procure a wealthy surety may be both
exasperating and expensive. Krishna Iyer, J. said that the word "bail" covers "release on one's own
bond, with or without sureties", as the legal literature, Indian and Anglo-American on bail
jurisprudence lends countenance and the need for liberal interpretation in areas of social justice,
individual freedom and indigent's rights justifies. Social Justice is the signature tune of our
Constitution and the little man in peril of losing his liberty is the consumer of Social Justice.
The principal purpose of bail is to insure that an accused person will return for trial if he is released
after arrest. How is that purpose met under the present system? The defendant with means can
afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price.
He languishes in jail weeks, months and perhaps even years before trial. He does not stay in jail
because he is guilty. He does not stay in jail because any sentence has been passed. He does not stay
in jail because he is any more likely to flee before trial. He stays in jail for one reason only-because
he is poor.....
"The bail system, as we see it administered in the criminal courts to-day, is extremely
unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk
of non appearance by the accused into precise monetary terms and even its basic premise that risk
of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are
several considerations which deter an accused from running away from justice and risk of financial
loss is only one of them and that too not a major one. Even without monetary bail it has been
possible to secure the presence of the accused at the trial."
"We should suggest that the Magistrate must always bear in mind that monetary bail is not a
necessary element of the criminal process and even if risk of monetary loss is a deterrent against
fleeing from justice, it is not the only deterrent and there are other factors which are sufficient
deterrents against flight. The Magistrate must abandon the antiquated concept under which pre-
trial release could be ordered only against monetary bail. That concept is out dated and experience
has shown that it has done more harm than good" [Encyclopedia Britannica, Vol. I, P. 736 (15th
Edn)].
Every other feasible method of pre-trial release should be exhausted before resorting to monetary
bail. The practice which is now being followed in the United States is that the accused should
ordinarily be released on order to appear or on his own recognizance unless it is shown that there
is substantial risk in his appearance or there are circumstances justifying imposition of conditions
on release... If a Magistrate is satisfied after making an enquiry into the condition and background
of the accused that the accused has his roots in the community and is not likely to abscond, he can
safely release the accused on order to appear or on his own recognizance.
Krishna Iyer, J. observed: "We leave it to Parliament to consider whether in our socialistic republic,
with social justice as its hallmarks, monetary superstition, not other relevant considerations like
family ties, roots in the community, membership of stable organisations, should prevail for bail
bonds to ensure that the 'bailee' does not flee justice. The best guarantee of presence in court is the
reach of the law, not the money tag. A parting thought. If the indigents are not to be betrayed by the
law including bail law, re-writing of many processual laws is an urgent desideratum..."
Thus, a liberal policy of conditional release without monetary sureties or financial security and
release on one's own recognizance with punishment provided for violation will go a long way to
reform the bail system and help the weaker and poorer sections of the community to get equal
justice under law. Conditional release may take the form of entrusting the accused to the care of his
relatives or releasing him on supervision. The court or the authority granting bail may have to use
the discretion judiciously. When the accused is too poor to find sureties, there will be no point in
insisting on his furnishing bail with sureties, as it will only compel him to be in custody with the
consequent handicaps in making his defence."]
The court cannot impose any condition in a bail-order under Sec. 436. The only exception to this
rule is stated in sub-sec. (2).
Sub-sec. (2) It provides that a person who absconds or has broken the condition of his bail-bond
(e.g. failed to appear before the court on the date fixed) when he was released on bail in a bailable
case on a previous occasion, shall not, as of right, be entitled to bail when brought before the court
on any subsequent date even though the offence may be bailable, Further, the court can call upon
any person bound by such bond to pay the penalty thereof under Sec. 446.
Insertion of new Sec. 436-A (Maximum period for which an Under-trial Prisoner can be Detained)
(by 2005 Amendment): Where a person has during the period of investigation, inquiry or trial
under this Code of an offence under any law (not being an offence for which the punishment of
death has been specified as one of the punishments under that law) undergone detention for a
period extending up to one-half of the maximum period of imprisonment specified for that offence
under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by
it in writing, order the ntinued detention of such person for a period longer than one-half of the said
period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of
investigation, inquiry or trial for more than the maximum period of imprisonment provided for the
said offence under that law.
Explanation - In computing the period of detention under this section for granting bail, the period of
detention passed due to delay in proceeding caused by the accused shall be excluded.
The aforesaid amendment will benefit under-trials, who are detained for long periods while the
investigation or trial is proceeding. There had been instances, where under-trial prisoners were
detained in jail for periods beyond the maximum period of imprisonment provided for the alleged
offence. They should not languish endlessly in jail because courts cannot cope with the backlog of
cases. Also, the fear that criminals might be let out unpunished if the detention extends beyond half
the prescribed term should spur the police and investigating agencies into action, and help deliver
speedier justice.
The enormity of this amendment comes from the fact that 66.7 per cent of the nearly four lakh total
inmates in the country's already overcrowded jails are undertrials. The Home Ministry estimates
that the amendment could benefit as many as 50,000 inmates (who've already spent more than half
the prescribed period of imprisonment in different jails).
Prior to the enactment of Sec. 436-A, it was the Common Cause judgment (1996) that had for the
first time laid down the law on detention of undertrials: An undertrial was required to be released
after six months even if he was accused of an offence punishable with imprisonment up to five
years. For more serious offences punishable with imprisonment up to seven years, the undertrial
could not be detained beyond one year. Thus, the law laid down by the Supreme Court a decade ago
was more liberal. The provocation for the new law was the failure of the criminal justice system to
implement the Common Cause judgment in letter and spirit. On the positive side, the new law has a
greater chance of being implemented since its "one-half" formula, for instance, applies to all cases
other than those punishable with death. The Common Cause verdict was relatively more
complicated as it did not apply to cases involving charges of corruption, terrorism, smuggling or
drug peddling. It also required the courts to take the length of trial into account before releasing the
undertrials.
Other Mandatory Bail Provisions
(1) Right to be released on bail if investigations are not completed within the prescribed number of
days - Where the accused has completed 60 or 90 days in detention and there is no formal charge
sheet framed against them, the court is under constitutional and procedural mandate to ask the
detenu if he desire to be released on bail and if he can furnish bail, he must be released on bail
forthwith [Sec. 167(2), proviso]. This provision is applicable irrespective of the fact that the offence
of which he is accused of is non-bailable or the case is such that the bail cannot be granted
according to the provisions of Chapter XXXIII of the Code dealing with bail and bonds. Mere
submission of charge-sheet cannot be a ground for cancellation of bail granted under Sec. 167(2).
(2) No reasonable grounds for believing the accused guilty of a non bailable offence but sufficient
for further inquiry - The accused shall be released on bail in such a case, according to Sec. 437(2).
(3) Trial non concluded within 60 days - If, in any case triable by a magistrate, the trial of a person
accused of any non-bailable offence is not concluded within a period of 60 days from the first date
fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the
said period, be released on bail to the satisfaction of the magistrate, unless for reasons to be
recorded in writing the magistrate otherwise directs [Sec. 437(6)].
(4) Release on bail after conclusion of trial but before the judgment is delivered If, at any time
before 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 [Sec. 437(7)]
Sec. 437. Cases of Non-bailable Offences
Sub-sec. (1)-When any person accused of or suspected of the commission of any non-bailable
offence is arrested or detained/or appears or is brought before a court (other than the High Court
or Court of Session), he may be released on bail, but
(i) such person shall not be so released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or life-imprisonment;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been
previously convicted of an offence punishable with death, life-imprisonment or imprisonment for 7
years or more, or he had been previously convicted on two more occasions of [*a cognizable offence
punishable with imprisonment for three years or more but not less than seven years] [Sec. 437(1)].
[Note: *Substituted by the 2005 Amendment Act for "a non-bailable and cognizable offence".] The
above provisions are subject to the following provisos (exceptions):
First - The court may direct that any person under the age of 16 years or any woman or any sick or
infirm person accused of such an offence be released on bail. The proviso applies to both clauses (i)
and (ii).
Second - The court may direct that a person (habitual offender) referred to in clause (ii) be released
on bail if it is satisfied that it is just and proper so to do for any other special reason.
Third- The mere fact that an accused person may be required for being identified by witnesses
during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail.
Fourth - Provided also that no person shall, if the offence alleged to have been committed by him is
punishable with death, imprisonment for life, or imprisonment for seven years or more, be released
on bail by the Court under this sub-section without giving an opportunity of hearing to the Public
Prosecutor.] [Proviso inserted by the 2005 Amendment Act].
Thus, if an accused appears before the Court while in judicial custody and prays for bail, or a prayer
for bail is made on his behalf, the Court shall grant bail only after giving an opportunity of hearing
to the prosecution, if the offence alleged to have been committed by the accused is punishable with
death, imprisonment for life or imprisonment for not less than 7 years. The critics point out that
this provision will further whittle down protections for an accused person that have been built into
the criminal law.
Sub-sec. (3): Grant of bail with conditions - The power to impose condition can only be exercised:
(i) where the offence is punishable with imprisonment (7 years or more),
(ii) where the offence is an 'offence against the State', 'offence against the human body', or 'offence
against property' (1.P.C.),
(iii) where the offence is one of the abetment of, or conspiracy to, or attempt to commit any such
offence as mentioned in (i) and (ii).
The court may impose any condition which the court considers necessary in order to ensure that
such person shall attend in accordance with the conditions of the bond, or in order to ensure that
such person shall not repeat the offence, or otherwise in the interests of justice.
However, a condition tantamount to refusing the bail will not be considered as a condition
authorised by law [Mohd. Tariq v Union of India, 1990 Cr LJ 474 (All)]. Nor can a condition be
imposed in derogation of any fundamental right of the accused. A condition that the accused is to
aid the police by accompanying them to various places for the recovery of stolen goods would be in
clear derogation of the right of the accused of not being a witness against himself, and as such
would be invalid (K.S Layak v State of A.P., 1981 Cr LJ 954).
Amendment of Sec. 437 (by 2005 Amendment): Under Sec. 437(3), the Court has got the discretion
to impose certain conditions for the grant of bail. In order to make the provision stringent and to
see that the person on bail does not interfere or intimidate witness, sub-sec. (3) has been amended
to specify certain conditions, which are mandatory, viz.
(a) that such person shall attend in accordance with the conditions of the bond executed under this
Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or
suspected, of the commission of which he is suspected, and
(c) that such 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 office or tamper with the evidence.
Sub-sec. (4): Recording of reasons - Any officer or court releasing any person on bail in a case of
non-bailable offence is required to record in writing his or its reasons for so doing. This
requirement would enable the High Court or Court of Session to see whether the discretion in the
matter of bail was properly exercised.
The Supreme Court has pointed out that the courts exercising bail jurisdiction should refrain from
giving elaborate reasons in their orders for justifying the grant or refusal of bail. But this does not
constitute a glaring defect [Kashi Nath Roy v State of Bihar AIR 1996 SC 3240]. In Anwari Begam v
Sher Mohammed, 2005 Cr. L.J. (SC), it was held that though detailed examination of evidence and
elaborate documentation of the merits of the case is to be avoided while passing orders on bail
application yet a court should be satisfied as to whether there is a prima facie case. A bail order
must be reasoned, while considering bail application the court must consider among others the
following circumstances:
(i) The nature of accusation and severity of punishment in case of conviction and the nature of
supporting evidence.
(ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the

complainant.
(iii) Prima facie satisfaction of the court in support of the charge.
It was also pointed out that any order not supported by such reasons suffers from non-application
of mind [Ram Govind Upadhyay v Sudarshan Singh (2002) 3 SCC 598]. Therefore, any bail granted
to murder accused by cryptic non-speaking order was liable to be set aside.
Where enlargement of a co-accused on bail was made, the bail could not be granted to other co-
accused as a matter of right, unless their case is identically similar [Nanha v State, 1993 CrLJ 938
(All)].
Sec. 437-A (Inserted by 2008 Amendment)
This amendment inserts a new Sec. 437-A to provide for the Court to require accused to execute
bail bonds with sureties to appear before the higher Court as and when such Court issues notice in
respect of an appeal against the judgment of the respective Court.
437-A. Bail to require accused to appear before next Appellate Court -
(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or
the Appellate Court, as the case may be, shall require the accused to execute bail bonds with
sureties, to appear before the higher Court as and when such Court issues notice in respect of any
appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in
force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure under Sec. 445 shall
apply."
Temporary Interim Bail
If a court has authority to decide the bail matter, it has authority to consider a 'temporary bail' or
'parole' or dealing with the custody of the accused and manner of it till the required material is
collected.
The court possess jurisdiction to release an accused on 'interim bail' pending final disposal of the
bail application, especially in the following cases:
(i) offences of trivial nature in which bail is generally granted,
(ii) release of women, children, minors and aged persons,
(iii) students whose examination are to commence should also be given interim relief, and
(iv) cases in which accusations appear to be frivolous or mala fide. But release on interim bail is no
ground for grant of bail, which has to be made only on merits.
Cancellation of Bail [Secs. 437 (5) and 439 (2)]
Even after bail has been granted, it can be cancelled under Sec. 437(5) or Sec. 439(2). According to
Sec. 437(5), any court which has released a person on bail under Sec. 437(1) or (2), may, if it
considers it necessary so to do, direct that such person be arrested and committed to custody.
The power to cancel a bail has been given to the court and not to a police officer. Secondly, the court
which granted the can alone cancel it. But an order made by one Magistrate releasing an accused
person on bail pending trial can be cancelled by another Magistrate to whom the case may be
transferred for trial. The bail granted by a police officer cannot be cancelled by the court of a
magistrate, but by the High Court or Court of Session. Where an accused was released on bail for a
non-bailable offence and subsequently the offences were converted into more serious ones, it was
held that the court had power to cancel the bail and take back the accused into custody [Kalyan
Singh v State, 1989 CrLJ 512 (M.P.)].
STATE (DELHI ADMINISTRATION) V SANJAY GANDHI ("Kissa Kursi Ka" Case)) [1978 Cr.LJ.
952 (SC))
[The power to take back in custody one who has been enlarged on bail has to be exercised with care
and circumspection. But at the same time, in an appropriate case, such a power can be exercised.
The Court's task, in such cases, is to determine whether, by the application of the test of
probabilities, the prosecution has succeeded in proving its case that the respondent has tampered
with its witnesses and that there is a reasonable apprehension that he will continue to indulge in
that course of conduct if he is allowed to remain at large.]
In this case, a film named "Kissa Kursi Ka" portraying the story of the political doings of the
respondent (Sanjay Gandhi) and his mother, Smt. Indira Gandhi (former Prime Minister of India)
was in issue. The Censor Board declined to grant a certificate for exhibition of the film whereupon a
writ petition was filed in the Supreme Court for a writ of Mandamus. The Apex Court was informed
that it was not possible to screen the film for evaluation by the Judges. During a raid conducted at
the Gurgaon premises of the Maruti Limited some incriminating material (against the respondent)
was found viz. boxes containing the spoils of the film burnt and destroyed in the factory premises.
Apparently, 150 prints of the film were destroyed by the respondent in connivance with the officers
of the Maruti Ltd.
The respondent was able to secure an anticipatory bail. The Delhi Administration filed an appeal in
the High Court of Delhi for cancellation of the respondent's bail on the ground that he attempted to
thwart the course of justice. The application having been dismissed by a single judge, the Delhi
Administration filed this appeal by special leave in the Supreme Court.
The Supreme Court said that 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 and large, be permitted only if by reason of supervening
circumstances, it would no longer be conducive to a fair trial to allow the accused to retain his
freedom during the trial.
The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that
the accused has won them over. The objective fact that the witnesses have turned hostile must be
shown to bear a causal connection with the subjective involvement therein of the respondent.
Without such proof, a bail once granted cannot be cancelled on the choice or on the supposition that
witnesses have won over by the accused. Inconsistent testimony can no more be ascribed by itself
to the influence of the accused then consistent testimony, by itself, can be ascribed to the pressure
of the prosecution.
A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a
statement recorded during the course of investigation. That happens instinctively, out of natural
love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of
the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a
sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. One
has to countenance a reasonable possibility that the employees of Maruti might have, of their own
volition, attempted to protect the respondent from involvement in criminal charges. Their
willingness now to oblige the respondent would depend upon how much the respondent has
obliged them in the past. It is therefore necessary for the prosecution to show some act or conduct
on the part of the respondent from which a reasonable inference may arise that the witnesses have
gone back on their statements as a result of an intervention by or on behalf of the respondent.)
The Court held: The limitations circumscribing the jurisdiction of the Magistrate are evident and
apparent. Assumption of jurisdiction to entertain the application is distinguishable from the
exercise of the jurisdiction. The jurisdiction to grant bail has to be exercised on the basis of well-
settled principles having regard to the circumstances of each case and not in an arbitrary manner.
Thus, while granting bail, the court has to keep in mind the nature of accusations, the severity of
punishment which conviction will entail, the character, behaviour, means and standing of the
accused, circumstances which are peculiar to the accused, etc. It is to be noted that for the purpose
of granting the bail the legislature has used the words "reasonable grounds for believing" instead of
"the evidence" which means that the court dealing with the grant of bail can only satisfy itself as to
whether there is a genuine case against the accused and that the prosecution will be able to provide
prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence
establishing the guilt of the accused beyond reasonable doubt.
STATE V CAPTAIN JAGJIT SINGH (AIR 1962 SC 253)
The respondent along with two others was prosecuted for conspiracy and also under Secs. 3 and 5
of the Official Secrets Act, 1923. The respondent is a former captain of Indian Army, the other two
persons were employed in the Ministry of Defence. The case against them was that they in
conspiracy had passed on official secrets to a foreign agency. The High Court took the view that as
the other two accused had been released on bail, the respondent should also be so released,
particularly as it appears that the trial was likely to take a long time and the respondent was not
likely to abscond (he being well-connected). The question whether the case falls under Sec. 3 (non
bailable offence) or Sec. 5 (bailable offence) is arguable.
The Supreme Court observed that there is a basic error in the High Court's order. Whenever an
application for bail is made to a court, the first question that it has to decide is whether the offence
for which the accused is being prosecuted is bailable or not. If it is arguable that the case falls under
bailable or non bailable offence, the High Court should have proceeded on the assumption that the
case falls under Sec. 3 (not bailable), but the High Court thought that case falls under Sec. 5
(bailable),
Prima facie, therefore, a case has been found against the respondent under Sec. 3 which is a non-
bailable offence. Among other considerations which a court has to take into account in deciding
whether bail should be granted in a non-bailable offence, is the nature of the offence and if the
offence is of a kind in which bail should not be granted considering its seriousness, the court should
refuse bail. The case against the respondent is in relation to the military affairs of the Government
and prima facie therefore, the respondent if convicted would be liable up to 14 years imprisonment.
Considering the nature of the offence (conspiracy against State), it seems that this is not a case
where discretion, which vests in the court under Sec. 439, should have been exercised in favour of
the respondent.
The case of the respondent is different from the case of other two persons, as it is the respondent
who is in touch with the foreign agency and not the other two persons. The fact that the respondent
may not abscond is not by itself sufficient to induce the court to grant him bail in a case of this
nature. Further, as the respondent has been committed for trial to the Court of Session, it is not
likely now that the trial will take a long time. Held, the bail cannot be granted.)
SANJAY CHANDRA V CENTRAL BUREAU OF INVESTIGATION [(2012) 1 SCC 40]
[The law of bail, like any other branch of law, has its own philosophy, and occupies an important
place in the administration of justice and the concept of bail emerges from the conflict between the
police power to restrict liberty of a man who is alleged to have committed a crime, and
presumption of innocence in favour of the alleged criminal. An accused is not detained in custody
with the object of punishing him on the assumption of his guilt.
In determining whether to grant bail, both the seriousness of the charge and the severity of the
punishment should be taken into consideration. The grant or denial of bail is regulated, to a large
extent, by the facts and circumstances of each particular case. Delay in commencement and
conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for
indefinite period, if trial is not likely to be concluded within reasonable time.]
The Apex Court, after referring to various judgments on the issue of bail in this country,
observed:
(i) In bail applications, generally, it has been laid down from the earliest times that the object of bail
is to secure the appearance of the accused person at his trial by reasonable amount of bail. The
object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a
punishment, unless it can be required to ensure that an accused person will stand his trial when
called upon. The courts owe more than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody pending completion of trial
could be a cause of great hardship. From time to time, necessity demands that some unconvicted
persons should be held in custody pending trial to secure their attendance at the trial but in such
cases, 'necessity' is the operative test.
(ii) In this country, it would be quite contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any matter, upon which, he has not
been convicted or that in any circumstances, he should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary
circumstances. Apart from the question of prevention being the object of a refusal of bail, one must
not lose sight of the fact that any imprisonment before conviction has a substantial punitive content
and it would be improper for any Court to refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.
(iii) In the instant case, the "pointing finger of accusation" against the appellants is the seriousness
of the charge The offences alleged are economic offences which has resulted in loss to the State
exchequer. Though, they contend that there is possibility of the appellants tampering witnesses,
they have not placed any material in support of the allegation. In our view, seriousness of the
charge is, no doubt, one of the relevant considerations while considering bail applications but that
is not the only test or the factor: The other factor that also requires to be taken note of is the
punishment that could be imposed after trial and conviction, both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing
the Constitutional Rights but rather "recalibration of the scales of justice."
(iv) This Court in Kalyan Chandra Sarkar v Rajesh Ranjan (2005) 2 SCC 42, observed: It is trite law
that personal liberty cannot be taken away except in accordance with the procedure established by
law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above
right also contemplates deprivation of personal liberty by procedure established by law. Under the
criminal laws of this country, a person accused of offences which are non-bailable, is liable to be
detained in custody during the pendency of trial unless he is enlarged on bail in accordance with
law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since
the same is authorized by law. But even persons accused of non bailable offences are entitled to bail
if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima
facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the
existence of prima facie case, there is need to release such accused on bail, where fact situations
require it to do so."
(v) This Court, time and again, has stated that bail is the rule and committal to jail an exception. In
State of Rajasthan v Balchand (1977) 4 SCC 308, this Court opined: "The basic rule may perhaps be
tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice
or thwarting the course of justice or creating other troubles in the shape of repeating offences or
intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the
Court."
DR. VINOD BHANDARI V STATE OF M.P. [(SC) (Feb. 2015)]
[In deciding bail applications an important factor which should certainly be taken into
consideration by the court is the delay in concluding the trial. However, it is not the conclusive
factor. Other factors viz. seriousness of the offence and the possibility of the accused influencing the
course of the trial, are equally important.]
In this case, the offence purported to be committed by the appellant accused is of high magnitude -
illegal admission to large number of undeserving candidates to the medical courses by corrupt
means.
The court observed: In deciding bail applications an important factor which should certainly be
taken into consideration by the court is the delay in concluding the trial. Often this takes several
years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of
his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the
fundamental rights in our Constitution, not violated in such a case? Of course this is not the only
factor, but it is certainly one of the important factors in deciding whether to grant bail [State of
Kerala y Raneef (2011) I SCC 784].
Undoubtedly, the offence alleged against the appellant has serious adverse impact on the fabric of
the society. Apart from showing depravity of character and generation of black money, the offence
has the potential of undermining the trust of the people in the integrity of medical profession itself.
If undeserving candidates are admitted to medical courses by corrupt means, not only the society
will be deprived of the best brains treating the patients, the patients will be faced with undeserving
and corrupt persons treating them in whom they will find it difficult to repose faith. In these
circumstances, when the allegations are supported by material on record and there is a potential of
trial being adversely influenced by grant of bail, seriously jeopardising the interest of justice, we do
not find any ground to interfere with the view taken by the trial Court and the High Court in
declining bail.
It is certainly a matter of serious concern that the appellant has been in custody for about one year
and there is no prospect of immediate trial. When a person in custody to facilitate a fair trial and in
the interest of the society, it is duty of the prosecution and the Court to take all possible steps to
expedite the trial. Speedy trial is a right of the accused and is also in the interest of justice. We are
thus, of the opinion that the prosecution and the trial Court must ensure speedy trial so that right of
the accused is protected. We also direct that if the trial is not completed within one year from today
for reasons not attributable to the appellant, the appellant will be entitled to apply for bail afresh to
the High Court which may be considered in the light of the situation which may be then prevailing.]
(Anticipatory Bail (Sec. 438, Cr. P.C.)
Meaning - The term 'anticipatory bail' implies a direction to release a person on bail issued even
before the person is arrested. In other words, it is a convenient mode of conveying that it is
impossible to apply for bail in anticipation of arrest. When the courts grant 'anticipatory bail', what
it does is to make an order that in the event of arrest, a person shall be released on bail. Therefore,
it is only on arrest that the order granting anticipatory bail becomes operative. The distinction
between an ordinary order of bail and an order of anticipatory bail is that whereas the former is
granted after arrest and therefore means release from the custody of the police, the latter is granted
in anticipation of arrest and is therefore effective at the very moment of arrest.
The provisions of Sec. 438 cannot be invoked after the arrest of the accused. After arrest, the
accused must seek his remedy under Sec. 437 or Sec. 439 of the Code, if he wants to be released on
bail in respect of the offence or offences for which he is arrested [Supreme Court in June 2013].
Necessity - Under the old Code there was no provision for grant of anticipatory bail. The Law
Commission in its 41st Report observed: "The necessity for granting anticipatory bail arises mainly
because sometimes influential persons try to implicate their rivals in false causes for the purpose of
disgracing them or for other purposes by getting them detained in jail for some days. In recent
times, with the accentuation of political rivalry, this tendency is showing signs of steady increase.
Apart from 'false cases", where there are reasonable grounds for holding that a person accused of
an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no
justification to require him first to submit to custody, remain in prison for some days and then
apply for bail."
Thus, the rationale behind 'anticipatory bail' (insurance against police custody) is that individual
liberty must not be put in jeopardy on the instance of unscrupulous and irresponsible persons.
While granting anticipatory bail the court must strike a balance so that individuals may be
protected from unnecessary humiliation and the faith of the public in the administration of justice is
not shaken. An order under Sec. 438 is a device to secure the individual's liberty, it is neither a
passport to the commission of crimes nor a shield against any and all kinds of accusations likely or
unlikely [Parvinderjit Singh v State (U.T. Chandigarh) AIR 2009 SC 502].
Pre Trial Proceedings
Cognizance of Offences by Magistrates [Sec. 190]
Sec. 190(1) lays down that subject to the provisions of this Chapter, any Magistrate of the first class,
and any Magistrate of the second class specially empowered by the Chief Judicial Magistrate in this
behalf under sub-sec.(2). may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon an information received from any persons (other than a police officer), or upon his own
knowledge, that such offence has been committed.
The word "may take cognizance" in the context means "must take cognizance The Magistrate has no
discretion in the matter; otherwise the section will be violative of Art. 14 of the Constitution
[Sampat Singh v State of Haryana (1993) 1 SCC 561].
The word 'cognizance' literally means 'become aware of. The word has been used in the Code to
indicate the point when the Magistrate/ Judge first take judicial notice of an offence. Taking
cognizance includes intention of initiating a judicial proceeding against an offender in respect of an
offence or taking steps to see whether there is a basis for initiating a judicial proceeding. It is a step
preliminary to the commencement of the inquiry/trial [R.R. Chari v State of U.P. AIR 1951 SC 207].
Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as
soon a Magistrate, as such, applies his mind to the suspected commission of an offence for the
purpose of proceeding to take subsequent steps (under Sec. 200/202/204). However, when a
Magistrate applies his mind not for the purpose of proceeding as mentioned above, but for taking
action of some other kind e.g. ordering investigation under Sec. 156(3), or issuing a search-warrant
for the purpose of investigation, he cannot be said to have taken cognizance of the offence [Tula
Ram v Kishore Singh (1977) 4 SCC 459].
At the time of taking cognizance, the court is not required to closely scrutinize the evidence, but it
has only to satisfy itself that a prima facie case is made out against the accused. Besides allegations
contained in the complaint. the Magistrate should consider all evidence on record while taking
cognizance [State of Bihar v Kamla Prasad Singh, 1998 CrLJ 3601 (SC)]. Whether cognizance has
been taken by the Magistrate or not is a question of fact to be determined in each case. In a case,
when the complaint was filed, the Magistrate had simply posted the case to next day and on a
subsequent date. sworn statement of the complainant were recorded and certain exhibits were
marked, It was held that the very act of recording sworn statement and issuing process indicated
that the Magistrate had taken cognizance of the offence (R Rajendra Reddy v Sujaya Feeds, 1995
CrLJ 1427 (Karnt)].
An order of Magistrate under Sec. 190 must be a 'speaking order Thus, a refusal to take cognizance
of an offence should be accompanied by reasons [Hastimal v State, 1994 CrLJ (NOC) 145 (Raj.)]. The
power to take cognizance of an offence is different from the power to inquire into or try a case. A
court may have the former power, but not the latter, and vice versa. Cognizance is taken of the
offence and not of the accused. The taking of cognizance under Sec. 190 does not depend upon the
presence of the accused in the court. Likewise, a refusal to take cognizance of an offence does not
amount to discharge of the accused [Hanuman Singh v State, 1997 CrLJ 1331 (Raj)].
Interrelation between Secs. 156, 173 and 190 A Magistrate, on receipt of a complaint, may take
cognizance of the offence, or, he can, without taking cognizance, order an investigation under Sec.
156(3). In the latter case, on receiving a police report under Sec. 173(1), he may, thereafter, do one
of the three things:
(I) He may decide that there is no sufficient ground for proceeding further and drop action.
(ii) He may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report
(this he may do without being bound in any manner by the conclusion arrived at by the police in
their report) and direct the issue of process to the accused. The Magistrate is not bound in such a
situation to follow the procedure laid down in Secs. 200 and 202 for taking cognizance of a case
under Sec. 190(1)(a) though it is open to him to act under Secs. 200 and 202 also [India Carat Pvt.
Ltd. v State of Karnataka, 1989 CrLJ 885 (SC); Minu Kumari v State of Bihar (2006) 4 SCC 359].
(iii) He may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original
complaint and proceed to examine the complainant and his witnesses under Sec. 200 [H.S. Bains v
State AIR 1980 SC 1883].
Sec. 190(1)(b) applies to any police report whether of a cognizable or non cognizable offence. If
ultimately, the Magistrate forms the opinion that the facts set out in the final report constitute an
offence, then he can take cognizance of the offence under Sec. 190(1)(c), notwithstanding the
contrary opinion of the police expressed in the report [Abhinandan Jha v Dinesh Mishra AIR 1968
SC 1171)
A 'complaint' under Sec. 190(1)(a) may be by word of mouth or in writing, it may be made even by
post. The expression "information received from any person other than a police officer" [Sec.
190(1)(c)] means such information as does not constitute a complaint or a police-report. This
clause applies only to cases where the private individual who is injured or aggrieved or someone on
his part does not come forward to make a formal complain
The essential difference between a complaint [cl.(a)] and information [cl.(b)] is that a Magistrate
acts on a complaint because the complainant has asked him to act but in the case of information a
Magistrate acts of his own accord and initiative. Under Sec. 190(1)(c), a Magistrate can take
cognizance of an offence, without any complaint, only when it has come to his knowledge that such
offence has been committed. Mere suspicion is not enough [Hire Sah v State, 1980 CrLJ 55 (Pat)].
COMPLAINTS TO MAGISTRATES
An order summoning a person to appear in a court of law to answer a criminal charge entails
serious consequences. Therefore, Secs, 200-203 have been enacted for weeding out false, frivolous
and vexatious complaints aimed at harassing the accused person. However, these sections are
exclusively applicable in cases where the cognizance is taken on a complaint [vide Sec. 190(1)(a)].
Such special procedure is not needed in cases where cognizance has been taken on a police report.
A Magistrate is bound to examine the complainant (Sec. 200) and then can either issue summons to
the accused, or order an inquiry under Sec. 202 or dismiss the complaint under Sec. 203.
Examination of Complainant [Sec. 200]
Sec. 200 provides that a Magistrate taking cognizance of an offence on a complaint shall examine
upon oath the complainant and the witnesses present, if any, and that the substance of such
examination shall be reduced to writing and signed by the complainant and the witnesses, and the
Magistrate.
The object of such examination is to ascertain whether there is a prima facie case against the
accused person. The provisions are mandatory and not discretionary. The Magistrate must examine
the complainant even though the facts are fully set out in the written complaint. He must give the
complainant or his pleader an opportunity of being heard [Fani Bhushan Banerjee v Kemp (1906)
10 CWN 1086]
Where the accused is not prejudiced, the omission to examine the complainant does not vitiate the
entire proceedings [Begum Rai v State AIR 1952 Pat 154]. Further, under Sec. 200, the Magistrate
should ask the complainant whether any witnesses are present. Thus, the Magistrate should record
the presence or absence of such witnesses in the order-sheet. However, the non-mention of the
presence or otherwise of the witnesses would not by itself vitiate the proceedings [Nemichand v
State, 1980 CrLJ 75 (Karnt)] It is not necessary that the Magistrate taking cognizance must
invariably examine the witnesses named in the petition of complainant. Such non examination
would not vitiate the proceedings.
In certain cases, the recording of pre-summoning of evidence may be dispensed with. Proviso (a) to
Sec. 200 lays down that when a complaint is made in writing by a court or a public servant (e.g. a
police officer), the examination of the complainant is not necessary. Similarly, proviso (b) lays down
that when the complaint is in writing and the Magistrate makes over the case for inquiry/trial to
another Magistrate under Sec. 192, then he need not re-examine the witnesses or the complainant.
COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES
Sections 204-210 relates to commencement of proceedings before Magistrate, when the cognizance
of an offence has been taken.
Issue of Process [Sec. 204]
If the Magistrate taking cognizance of an offence considers that there is sufficient ground for
proceeding, then if the case appears to be -
(a) a summons case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant or a summons, for causing the accused to be brought or
to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other
Magistrate having jurisdiction [Sec. 204(1)].
No summons or warrant can be issued against the accused, until a list of prosecution witnesses has
been filed [sub-sec.(2)]. Further, every summons or warrant shall be accompanied by a copy of
complaint where the complaint was made in writing [sub-sec.(3)]. If under any law, any process fee
or other fee is payable, no process can be issued until such fee is paid. If such fees are not paid
within a reasonable time, the Magistrate can dismiss the complaint (Sec. 204(4)].
A Magistrate who has neither taken cognizance nor is one to whom case has been transferred
cannot issue process [Rajendra Nath v D.S.P., Puridia AIR 1972 SC 470]. At the stage of issuing the
process, the Magistrate is mainly concerned with the allegations made in the complaint or the
evidence led in support of the same and he is only to be prima facie satisfied whether there are
sufficient grounds for proceeding against the accused [Naganna v Veeranna AIR 1976 SC 1947]. He
cannot refuse to issue the process merely because he is of the opinion that the proceedings are
unlikely to result in a conviction. He cannot look into the evidence of the accused nor can look into
the credibility of witnesses at this stage [Kamta Prasad v State, 1993 CrLJ 2002 (AI)].
Recording of reasons in brief is a sine qua non for a valid order issuing process under Sec. 204
because sufficiency of "ground of proceeding" is justiciable [Kailash Chaudhari v State, 1994 CrLJ 67
(All)].
The real purport of sub-secs. (1), (2) and (3) is to give the accused person at the earliest
opportunity a fair idea of the allegations that are made against him as also of the persons who are
likely to support those allegations. This would enable him to prepare himself for their cross-
examination. Where a complainant did not pay the process-fee for summoning the accused, the
Magistrate was justified in dismissing the complaint in exercise of his powers under Sec. 204(4)
[Rajaram v Sundram, 1995 CrLJ 3418 (Mad)].
Commitment of Case to Court of Session [Sec. 209]
Sec. 209 lays down that in a case (instituted on a police report or otherwise) if it appears to the
Magistrate that the offence is triable exclusively by the Sessions Court, he must commit the case to
that court, send records of the case along with documents/articles to be produced in evidence and
notify the public prosecutor. Subject to bail provisions, a Magistrate is duty bound to remand the
accused until commitment, and similarly after commitment to the Sessions Court, an accused is to
be remanded to custody during and until the conclusion of (Sessions) trial.
In cases triable exclusively by the Sessions Court, the Magistrate need not, before committing the
accused, make any elaborate inquiry (except those prescribed under Sec. 202). He is not required to
hold enquiry in satisfy whether a prima facie case is disclosed. Thus, he has no power to discharge
the accused [State v Hit Ram Deka, 1990 CrLJ 7 (Goa)]. Proceedings before a Magistrate under Sec.
209 are not trial proceedings. The role of Magistrate is only to see that the package sent to the
Sessions Court is in order, so that it can proceed straightway with the trial. Such proceedings do not
fall within the ambit of 'inquiry' [Raj Kishore Prasad v State of Bihar, 1996 CHILI 2523 (SC)].)
THE CHARGE
Form of Charges (Secs. 211-217]
A charge is an important step in a criminal proceeding. It is that which separates the state of inquiry
from a trial. Sec. 2(b) defines a charge as including any head of charge, when the charge contains
more heads than one. Thus, the Code does not define what a charge is. In law, a charge may be
defined as a precise formulation of a specific accusation made against a person of an offence alleged
to have been committed by him [Birich Bhuiyan AIR 1963 SC 1120].
The purpose of a charge is to tell the accused, as precisely and concisely as possible, about the
matter with which he is charged, and Secs. 211-214 give clear and explicit directions as to how a
charge is to be drawn. up. The framing of a proper charge is thus vital to criminal trial, and is a
matter on which the Judge ought to bestow the most careful attention. The forms in which the
charges may be framed are set forth in Second Schedule of the Code.
The charge-sheet corresponds to the indictment under English law, and is much more than a mere
matter of form. The object of a charge is to warn the accused of the case which he has to answer. A
charge is, therefore, not an accusation in the abstract, but a concrete one. In the words of the Privy
Council, "The necessity of a system of written accusation specifying a definite criminal offence is of
the essence of criminal procedure" [Subramania, 5 CWN 866)].
(1) Contents of Charge [Secs. 211-214]
Under Sec. 211, the following are the requirements of a valid charge -
(I) It must state the offence with which the accused is charged.
(ii) If the law which creates the offence gives it any specific name, the offence must be described in
the charge by that name only.
(iii) Alternatively, if the law creating 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.
(iv) The law and the section of the law against which offence is said to have been committed must
be mentioned in the charge.
(v) The charge must be written in the language of the court.
Sec. 211(5) provides that the fact that the charge is made, is equivalent to a statement that every
legal condition required by law to constitute the particular offence was fulfilled in that particular
case. Further, if the accused has previously been convicted of any offence, and if it is intended to
prove such previous conviction, the fact, date and place of the previous conviction is also to be
stated in the charge. Even if such a statement is omitted, the court can add it at any time before the
sentence is passed against the accused [Sec. 211(7)].
The whole objective of framing a charge is to enable the defence to concentrate its attention on the
case that it has to meet, and if, therefore, the charge is framed in such a vague manner, that the
necessary ingredients of the offence are not brought out, the charge would be defective. The effect
of an omission in the charge-sheet on the conviction of the accused will depend upon the merits of
each case [Bhim Sen AIR 1976 SC 281].
Particulars as to Time, Place and Person [Sec. 212]
Sec. 212 then provides that the charge must contain such particulars as to the time and place of the
alleged offence, and the person, if any, against whom, or the thing if any, in respect of which, the
offence was committed, as are reasonably sufficient to give to the accused notice of the matter with
which he is charged.
Manner of Committing Offence when to be Stated [Secs. 213-214]
Sec, 213 lays down that if the nature of the case is such that the particulars mentioned in Secs. 211
and 212 do not give to the accused sufficient notice of the matter with which he is charged, the
charge must also mention such particulars of the manner in which the alleged offence was
committed as would be sufficient for that purpose.
(2) Effect of Errors in the Charge [Sec. 215]
Sec. 215 of the Code expounds a salutary rule to the effect that an error in stating either the offence
or any other particular required to be stated in the charge, and no omission to state the offence or
such particulars, can be regarded as material at any stage of the case, unless the accused was, in
fact, misled by such error or omission, and if this has caused a failure of justice.
Illustrations to Sec. 215

(a) A is charged under Sec. 242, IPC, with "having been in possession of counterfeit coin, having
known, at the time when he became possessed thereof, that such coin was counterfeit," the word
"fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this
omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge,
or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the
transaction. The court may infer from this that the omission to set out the manner of the cheating is
not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge.
There were many transactions between A and B, and I had no means of knowing to which of them
the charge referred, and offered no defence. The court may infer from such facts that the omission
to set out the manner of the cheating was, in the case, a material error.
In determining whether the error/omission in framing the charge has in fact occasioned failure of
justice, the court should take into consideration the manner in which the accused has conducted his
defence and also the nature of the objection [Ramji, 10 Bom 124]. Thus, when the charge did not
correctly set out the facts of the case, but it was clear from the answers which the accused gave to
the court, that he understood exactly what the case against him was, held that the defect in the
framing of the charge did not prejudice the accused [Gokul 429 CWN 483].
MOHAN SINGH V STATE OF BIHAR [(2011) 9 SCC 272]
In this case, in the charge it has been clearly mentioned that the accused-appellant has committed
the murder of one Anil Jha, however, the specific section of the Indian Penal Code was not
mentioned in the charge. Admittedly, no complaint of any prejudice by the appellant was raised
either before the trial court or in the High Court. This point was raised before the Apex Court for the
first time.
The Apex Court observed: The purpose of framing a charge is to give intimation to the accused of
clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to
meet in the course of a trial [V.C. Shukla v State (1980) Supp SCC 92].
Sec. 214 provides that, in every charge, the words which are used in describing the offence are
deemed to have been used in the same sense as it attached to them by the law under which an
offence is punishable. Under Sec. 211, the following are the requirements of a valid charge:
(i) It must state the offence with which the accused is charged.
(ii) If the law which creates the offence gives it any specific name, the offence must be described in
the charge by that name only.
(iii) Alternatively, if the law creating 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.
(iv) The law and the section of the law against which the offence is said to have been committed
must be mentioned in the charge.
Sec. 215 of the Code expounds a salutary rule to the effect that an error in stating either the offence
or any other particular required to be stated in the charge, and no omission to state the offence or
such particulars, can be regarded as material at any stage of the case, unless the accused was, in
fact, misled by such error or omission, and if this has caused a failure of justice. Further, Sec. 464
lays down that no finding, sentence or order of a competent court is to be deemed to be invalid,
merely on the ground that no charge was framed, or on the ground of any error, omission or
irregularity in the charge, unless in the opinion of the court of appeal, confirmation or revision, a
failure of justice has, in fact, been occasioned thereby.
In K. Prema S. Rao v Yadla Srinivasa Rao (2003) 1 SCC 217, this court held that though the charge
specifically under Sec. 306, IPC was not framed but all the ingredients constituting the offence were
mentioned in the statement of charges. It was held that mere omission or defect in framing of
charge does not disable the criminal court from convicting the accused for the offence which is
found to have been proved on the evidence on record. The provisions of Sec. 215 and Sec. 221,
Cr.P.C. takes care of such a situation and safeguards the powers of the criminal court to convict an
accused for an offence with which he is not charged although on facts found in evidence he could
have been charged with such offence.
In Dalbir Singh v State of U.P. (2004) 5 SCC 334, it was held that in view of Sec. 464, Cr.P.C. it is
possible for the appellate or revisional court to convict the accused for an offence for which no
charge was framed unless the court is of the opinion that the failure of justice will occasion in the
process. In order to judge whether there is a failure of justice the Court has to examine whether the
accused was aware of the basic ingredients of the offence for which he is being convicted and
whether the main facts sought to be established against him were explained to him clearly and
whether he got a fair chance to defend himself.
In State of U.P. v Paras Nath Singh (2009) 6 SCC 372, this Court, setting out Sec. 464, Cr.P.C., further
held that whether there is failure of justice or not has to be proved by the accused. In the instant
case, no such argument was ever made before the trial court or even in the High Court and we are
satisfied from the materials on record that no failure of justice has been occasioned in any way nor
has the appellant suffered any prejudice.
Again, in Annareddy S. Reddy v State of A.P. (2009) 12 SCC 546, this Court referring Sec. 464, came
to the conclusion that if the ingredients of the section charged with are obvious and implicit,
conviction under such head can be sustained irrespective of the fact whether the said section has
been mentioned or not in the charge. The basic question is one of prejudice.
In the present case, the Apex Court held: In view of such consistent opinion of this Court, we are of
the view that no prejudice has been caused to the appellant for non-mentioning of Sec. 302, IPC in
the charge since all the ingredients of the offence were disclosed. The appellant had full notice and
had ample opportunity to defend himself against the same and at no earlier stage of the
proceedings, the appellant had raised any grievance.
(3) Alteration/ Addition to the Charge [Secs. 216-217]
A power is given to the court by Sec. 216 to alter or add to any charge at any time before the
judgment is pronounced in the matter. However, every such alteration or addition must be read and
explained to the accused. If the addition or alteration to a charge is such that, in the opinion of the
court, proceeding immediately with the trial is not likely to prejudice the accused in his defence or
the prosecutor in the conduct of the case, the court may, in its discretion, proceed with the trial as if
the altered/ added charge had been the original charge. If, on the other hand, such alteration or
addition is likely to prejudice the accused or the prosecutor, the court may adjourn the trial or it
may direct a fresh trial [Sec. 216(1)-(4)].
If the offence stated in the altered or added charge is one for the prosecution of which the previous
sanction of any authority is required, the case cannot be proceeded with until such sanction has
been obtained, unless such sanction has already been obtained for a prosecution on the same facts
as those on which the altered or added charge is founded [Sec. 216(5)].
Moreover, whenever a charge is altered or added to by the court after the trial has commenced the
prosecutor and the accused shall be allowed:
(a) to recall or re-summon any witness who has already been examined, and examine such witness
with reference to the altered or added charge, unless the court considers (for reasons to be
recorded by it in writing) that such recall or re-examination of a witness is merely for the purpose
of vexation or delaying or defeating the ends of justice; and
(b) to call any further witnesses who are material witnesses in the opinion of the court [Sec. 217].
Joinder of Charges [Secs. 218-224]
((1) Separate Charges/ Trial for Distinct Offences [Sec. 218] Unlike civil suits, criminal cases cannot
be consolidated and tried together on the same evidence, except within the limits laid down in the
Cr.P.C. itself. Sec. 218, therefore, provides that, for every distinct offence for which any person is
accused, there must be a separate charge, and every separate charge must be tried separately.
However, a Magistrate may try together all or any number of charges framed against an
accused, if the latter himself so desires by an application in writing, and if the Magistrate is also of
the opinion that such a person is not likely to be prejudiced thereby. Thus, if A is accused of a theft
on one occasion and of causing grievous hurt on another occasion, he must be charged separately
and also tried separately for theft and for causing grievous hurt.
Trial to be Limited to Three Offences [Sec. 219]
Sec. 219 provides that if a person is accused of more than one offence of the same kind committed
within a span of twelve months, whether in respect of the same person or not, he can, at one trial,
be charged with and tried for any number of such offence, not exceeding three in all. Offences are
deemed to be of the same kind if they are punishable with the same amount of punishment under
the same section of the L.P.C., 1860, or of any special or local law.
(3) One Trial for Several Offences [Sec. 220] Under Sec. 220, if in one series of acts which are so
connected together as to constitute the same transaction, more than one offence is committed by
the same person, he can be charged with and tried for every such offence at one trial only. If a
person charged with one or more offences of criminal breach of trust or dishonest
misappropriation of property is accused of committing (for the purpose of facilitating or concealing
the commission of such offence) one or more offences of falsification of accounts, he can be charged
with and tried for every such offence at one trial only.
Framing of Charges [Sec. 228]
After considering the record of the case and after hearing the parties, if the judge considers that
there is ground for presuming that the accused has committed an offence, which -
(a) is not exclusively triable by court of session, the judge may frame a charge against the accused,
and transfer the case for trial to the chief judicial magistrate, *[or any other judicial magistrate of
the first class and direct the accused to appear before chief judicial magistrate, or as the case may
be, the judicial magistrate of first class, on such date as he deems fit, and thereupon such
magistrate] shall try the offence in accordance with the procedure for the trial of warrant case
instituted on a police report.
[Note - * inserted by the Cr.P.C. (Amendment Act) 2005. Sec. 228 has been amended to give
direction to the session judge to transfer a case either to the Chief judicial magistrate or to any
other judicial magistrate of the first class and to fix a date for appearance of the accused before such
magistrate, so that a lot of time which is wasted in summoning the accused by the Magistrate may
be saved.]
(b) is exclusively triable by the Sessions Court, that court shall frame in writing a charge against the
accused [Sec. 228(1)]. The charge shall be read and explained to the accused and the accused shall
be asked whether he pleads guilty of the offence charged or claims to be tried [Sec. 228(2)].
The standard of test, proof and judgment which is to be applied finally before finding the accused
guilty or otherwise, is not exactly to be applied at the stage of Sec. 228. The court's duty is to find
out whether or not a prima facie case against the accused has been made out [UOI v Prafulla Kumar
(1979) 3 SCC 4]. While the court is required to pass a reasoned order under Sec. 227, there is no
such requirement under Sec. 228. In Kanti Bhadra Shah v State of W.B. 2000 (1) Crimes 96 (SC), the
Apex Court explained: "If there is no legal requirement that the trial court should write an order
showing the reasons for framing a charge, why should the already burdened trial courts be further
burdened with such an extra work. We can appreciate if such a detailed order has been passed for
culminating the proceedings before them. But it is quite unnecessary to write detailed orders at
other stages, such as issuing process, remanding the accused to custody, framing of charges, passing
over to next stages in the trial.
AJAY KUMAR PARMAR V STATE OF RAJASTHAN [(2012) 9 SCALE 542]

[The scheme of the Code simply provides that the Magistrate can determine, whether the facts
stated in the police report make out an offence triable exclusively, by the Court of Sessions. Once he
reaches the conclusion that the facts alleged in the report, make out an offence triable exclusively
by the Court of Sessions, he must commit the case to the Sessions Court. The Magistrate cannot
discharge the accused.]
When an offence is cognizable by the Sessions court, the Magistrate cannot probe into the matter
and discharge the accused. It is not permissible for him to do so, even after considering the
evidence on record, as he has no jurisdiction to probe or look into the matter at all. His concern
should be to see what provisions of the Penal statute have been mentioned and in case an offence
triable by the Sessions Court has been mentioned, he must commit the case to the Sessions Court
and do nothing else. He was bound under law, to commit the case to the Sessions Court, where such
application for discharge would be considered.
In Sanjay Gandhi v Union of India (AIR 1978 SC 514), this court while dealing with the competence
of the Magistrate to discharge an accused, in a case like the instant one at hand, held: "....it is not
open to the committal Court to launch on a process of satisfying itself that a prima facie case has
been made out on the merits. The jurisdiction once vested in him under the earlier Code has been
eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a
prima facie satisfaction is to frustrate the Parliament's purpose in re-Moulding Sec. 207-A (old
Code) into its present non-discretionary shape. Expedition was intended by this change and this
will be defeated successfully if interpretatively we hold that a dress rehearsal of a trial before
the Magistrate is in order. In our view, the narrow inspection hole through which the committing
Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by
the police report, appears to the Magistrate to show an offence triable solely by the Court of
Session. Assuming the facts to be correct as stated in the police report the Magistrate has simply to
commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is
quoted, he may look into that aspect.
The Court observed (in the present case): It was not permissible for the Judicial Magistrate,
Sheoganj, to take into consideration the evidence in defence produced by the appellant as it has
consistently been held by this Court that at the time of framing the charge, the only documents
which are required to be considered are the documents submitted by the investigating agency
along with the charge-sheet. Any document which the accused want to rely upon cannot be read as
evidence. If such evidence is to be considered, there would be a mini trial at the stage of framing of
charge. That would defeat the object of the Code. Even if, in a rare case it is permissible to consider
the defence evidence, if such material convincingly establishes that the whole prosecution version
is totally absurd, preposterous or concocted, the instant case does not fall in that category (Vide:
State of Orissa v Debendra Nath Padhi AIR 2005 SC 3590; Rukmini Narvekar v Vijaya Satardekar
AIR 2009 SC 1013).
The Court further observed: The court should not pass an order of acquittal by resorting to a course
of not taking cognizance, where prima facie case is made out by the Investigating Agency. More so,
it is the duty of the court to safeguard the right and interests of the victim, who does not participate
in discharge proceedings. The Magistrate, in exercise of its power under Sec. 190 Cr.P.C., can refuse
to take cognizance if the material on record warrants so. The Magistrate must, in such a case, be
satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161
and 164 Cr.P.C., if any, do not make out any offence. At this stage, the Magistrate performs a judicial
function. However, he cannot appreciate the evidence on record and reach a conclusion as to which
evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is
impermissible. The Magistrate is not competent to weigh the evidence and the balance of
probability in the case.
The Court held: The scheme of the Code, particularly, the provisions of Sections 207 to 209, Cr.P.C.,
mandate the Magistrate to commit the case to the Court of Sessions, when the charge-sheet is filed.
A conjoint reading of these provisions makes it crystal clear that the committal of a case exclusively
triable by the Court of Sessions, in a case instituted by the police is mandatory.
Trial
Trial is the judicial adjudication of a person's guilt or innocence. Under the CrPC, criminal trials
have been categorized into three divisions having different procedures, called warrant, summons
and summary trials.
Summons-Case/ Warrant-Case
"Summons-case" means a case relating to an offence, and not being a warrant-case [Sec. 2(w)].
"Warrant-case" means a case relating to an offence punishable with death, life-imprisonment or
imprisonment for a term exceeding two years [Sec. 2(x)].
A case assumes the character of a 'summons-case' or a 'warrant-case' according to the nature and
measure of punishment which the law attaches to the offence. The division marks off ordinary cases
from serious ones, and determines the mode of trials. The classification also assumes importance at
the stage of issuing process to the accused person to decide as to whether a summons or a warrant
is to be issued to him in the first instance. In a summons case, a summons shall be issued and in a
warrant case, a warrant may be issued. Thus, in a warrant-case, a summons may be issued if the
Magistrate thinks fit to do so.
Distinction between a Summons-Case and Warrant-Case
A 'warrant' is an official authorization which gives the power for law enforcement officials to
engage in an activity. A warrant can be an arrest of a suspected individual, searching of premises or
else bringing an individual to court. A "summons,' on the other hand, is also an official request made
by a court for an individual to be present on a specific date and time to inquire after charges that
have been made. The main difference between summons and warrant is that while a warrant gives
authority for law enforcement officials to perform an action, a summons requests of the individual
to be present for an inquiry. If an individual ignores the summons then the next step would be the
issue of a warrant.
Warrant-Case
1. A warrant-case is when the offence is punishable with death sentence, life-imprisonment or

imprisonment exceeding 2 years.
2. The trial procedure (Chp. XIX) is quite elaborate. Two procedures are prescribed: one for cases,
instituted on police-report, and, the other on cases instituted otherwise.
3. A charge is to be framed against the accused.
4. After the charge is framed, if the accused pleads guilty, the Magistrate may convict him.
5. The Magistrate may permit the cross-examination of any prosecution witness to be deferred.
6. A Magistrate can discharge the accused if the complainant does not appear, or ifno charge is
framed, or if the offence iscompoundable and non-cognizable.
7. With the consent of the court, the complainant can withdraw the remaining charges if the
accused is convicted on one or more charges. There is no provision for withdrawal of complaint by
the complainant.
8. There is a special procedure if the accused has been charged in respect of a previous conviction.
9. If the accused is convicted the court is required to hear him on the question of sentence.
Summons-Case
1. All cases which are not so punishable are summons-cases.
2. The trial procedure (Chap. XX) is not so elaborate.
No charge need be framed; only the particulars of offence of which he is accused must be conveyed
to him (called "Notice").
4. If the accused pleads guilty, the Magistrate must record the plea of the convict him on such plea.
5. There are no provisions authorizing the Magistrate to permit the cross-examination of any
prosecution witness to be deferred.
6. An accused may be acquitted or the hearing adjourned if the complainant does not appear or on
death of the complainant.
7. With the permission of the Magistrate, the complainant can withdraw the complaint.
8. No such procedure is found in a summons-case trial.
9. Such a provision has not been made in the trial of a summons case.
TRIAL BEFORE A COURT OF SESSION
In respect of offences punishable with death, life imprisonment or imprisonment for a term
exceeding seven years, the trial is conducted in a Sessions Court after being committed or
forwarded the court by a magistrate. The old procedure of conducting inquiry by a Magistrate
for committing the cases instituted on police report to be tried by the Sessions Court has been
abolished. Therefore, Secs. 225 to 237 have been enacted to prescribe the procedure for trial by
Sessions Court.
The trial before the Sessions Court must proceed and be dealt with continuously from its inception
to its finish. Sessions case must not be tried piecemeal. Once the trial commences, the Sessions
Judge must, except for a very pressing reason which makes an adjournment inevitable, proceed de
die in diem until the trial is concluded [Bhagirath v State of M.P. AIR 1976 SC 975]. The trial before
a Court of Session could be summarized as below:
(1) Trial to be conducted by public prosecutor - In every trial before a Court of Session, the
prosecution shall be conducted by a public prosecutor [Sec. 225].
(2) Opening case for prosecution - When the accused appears or is brought before the court in
pursuance of a commitment of the case under Sec. 209, the prosecutor shall open his case by
describing the charge brought against the accused and stating by what evidence he proposes to
prove the guilt of the accused [Sec. 226].
If the public prosecutor knew at that stage itself that certain persons cited by the investigating
agency, as witnesses might not support the prosecution case, he is at liberty to state before the
court that fact [Hukam Singh v State of Rajasthan, 2001 CrLJ 511 (SC)].
(3) Discharge of accused - After considering the record of the case, and after hearing the submission
of the parties, if the court considers that there is no sufficient ground for proceeding against the
accused, it shall discharge him and record its reasons for so doing [Sec. 227].
At the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor
proposes to adduce are not to be meticulously judged. The court is only to see whether the material
on record is such on which a conviction can be said to be reasonably possible [State of Bihar v
Ramesh Singh AIR 1997 SC 2018].
(4) Framing of charge - After considering the record of the case and after hearing the parties, if the
Judge considers that there is ground for presuming that the accused has committed an offence
which is exclusively triable by the Sessions Court, that court shall frame in writing a charge against
the accused [Sec. 228(1)]. The charge shall be read and explained to the accused and the accused
shall be asked whether he pleads guilty of the offence charged or claims to be tried Sec. 228(2)].
(5) Conviction on plea of guilty - If the accused pleads guilty, the judge must record such a plea, and
in his discretion, he may convict him on such plea [Sec. 229].
(6) Date for prosecution evidence - If the accused refuses to plead guilty or does not plead guilty, or
claims to be tried, or is not convicted despite pleading guilty, the Judge must fix a date for
examination of witnesses. On the application of the prosecution, the Judge may also issue any
process for compelling the attendance of any witness or the production of any document, etc. [Sec.
230].
It is the duty of the court to take all necessary steps to compel the attendance of witnesses
[Public Prosecutor v Sambaji AIR 1965 Mad 31]. The accused cannot be acquitted on the ground of
failure of the witnesses to appear before the court or absence of the prosecutor [State of Mysore v
Somala, 1972 CrLJ 1478].
(7) Evidence for the prosecution - On the date fixed as mentioned above, the court shall proceed to
take all such evidence as may be produced in support of the prosecution [Sec. 231(1)]. The court
may permit the cross-examination of any witness to be deferred until any other witness has been
examined or recall any witness for further cross-examination [Sec. 231(2)].
It is surely the duty of the prosecution to examine all material witnesses essential for unfolding the
prosecution story, whether in the result the effect of that testimony is for or against the case for the
prosecution [Habeeb Mohd. v State of Hyderabad AIR 1954 SC 51]. If the prosecution gives up one
of the material eye-witnesses on the ground of close relationship with, and being won over by, the
accused, his non-examination cannot be said to destroy the fabric of the prosecution case which is
proved by the evidence of other eye-witnesses [Soma Bhai v State AIR 1975 SC 1453]. The
witnesses should be examined orally. The Judge can permit cross-examination of any witness to be
deferred. The court can recall the witnesses at any stage.
(8) Acquittal of accused- After taking the evidence for the prosecution and examining the accused,
the court shall hear the parties (prosecution and defence) and then if it considers that there is no
evidence that the accused committed the offence, it shall record an order acquitting him [Sec. 232].
(9) Evidence for the defence - If the accused is not acquitted, he shall be called upon to enter on his
defence and adduce any evidence in support of his defence. If the accused submits any written.
statement, the Judge must file it with the record [Sec. 233(1)-(2)].
If the accused applies for the issue of any process for compelling the attendance of any witness or
the production of any document/thing, the judge shall issue such process unless he considers, for
reasons to be recorded, that such application should be refused on the ground that it is made for the
purpose of vexation or delay or for defeating the ends of justice [Sec. 233(3)].
In a Sessions trial, the Code envisages two stages after the examination of the accused. First is,
hearing both the parties on the point, whether there is no evidence against the accused. If it is so,
the accused has to be acquitted under Sec. 232. If there is some evidence, the second stage comes
and the accused be called upon to enter his defence under Sec. 233. Only then, the entire evidence
be evaluated and its reliability be determined [Shivamani v State, 1993 CrLJ 23 (Ker)].
(10) Arguments - When the examination of the defence witnesses is complete, the prosecutor sums
up his case, and the accused or hist pleader shall be entitled to reply. Where any law-point is raised
by the defence, the prosecution may be allowed to make his submission with regard to such point of
law [Sec. 234].
TRIAL OF WARRANT-CASES BY MAGISTRATES
A warrant case relates to offences punishable with death, imprisonment for life or imprisonment
for a term exceeding two years. The CrPC provides for two types of procedure for the trial of
warrant cases by a magistrate, triable by a magistrate, viz. those instituted upon a police report and
those instituted upon complaint. In respect of cases instituted on police report, it provides for the
magistrate to discharge the accused upon consideration of the police report and documents sent
with it. In respect of the cases instituted otherwise than on police report, the magistrate hears the
prosecution and takes the evidence. If there is no case, the accused is discharged. If the accused is
not discharged, the magistrate holds regular trial after framing the charge, etc.
In a Case Instituted on a Police Report
Evidence for prosecution - If the accused refuses to plead or does not plead, or claims to be tried, or
the Magistrate does not convict him under Sec. 241, the Magistrate shall fix a date for the
examination of witnesses (Sec. 242(1)].
Provided that the Magistrate shall supply in advance to the accused, the statement of witnesses
recorded during investigation by the police" (Proviso, inserted by 2008 Amendment to the Code].
The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document/thing [Sec. 242(2)]. This power may be
exercised by the court suo motu. It seems the court may, where the prosecution is negligent or
guilty of laches, refuse to exercise this power [Mangilal, 1974 CrLJ 221].
On the date fixed for the examination of witnesses, the Magistrate shall proceed to take all such
evidence as may be produced in support of the prosecution. The Magistrate may permit the cross-
examination of any witness to be deferred until any other witness has been examined, or recall any
witness for further cross-examination [Sec. 242(3)].
Evidence for defence - After the prosecution evidence is over, the accused shall be called upon to
enter upon his defence and produce his evidence; if he puts in any written statement, the
Magistrate shall file it with the record [Sec. 243(1)].
If the accused applies to the Magistrate to issue process for calling any witness for
examining/cross-examination or for the production of document/thing, the Magistrate shall issue
process unless (i) he considers that such application is made for the purpose of vexation or
defeating the ends of justice, or (ii) the accused had, prior to entering upon his defence, either
cross-examined or had the opportunity of cross-examining any witness. In the former case, the
Magistrate is required to record his reasons in writing for refusal to issue process, and, in the latter,
he may, if satisfied that it is necessary for the ends of justice to compel such attendance, issue
process [Sec. 243(2)].
Cases Instituted Otherwise than on Police Report
Evidence for prosecution - When the accused is brought before a Magistrate, he should proceed to
hear the prosecution and take all such evidence as may be produced. The Magistrate may also
summon such persons whom the prosecution wishes to give evidence in support of its case [Sec.
244]. The court can permit examination of witnesses not mentioned in the list of witnesses.
TRIAL OF SUMMONS-CASES BY MAGISTRATES
A summons case means a case relating to an offence not being a warrant case, implying all cases
relating to offences punishable with imprisonment not exceeding two years. In respect of
summons-cases, which are usually. petty cases, the courts have been empowered to use summary
procedure. Such trial procedure is not as elaborate and formal as that in warrant cases. Even the
method of preparing the record (of evidence) is less formal. As observed by the Law Commission:
"The scheme is simple, and the intention clearly is that these not very serious but numerous cases
should be decided quickly. All the essentials of a fair trial are present here, and the nature of these
cases is such that a more elaborate method would only add to the expense and perhaps harassment
of the parties without substantially aiding the cause of justice" [41st Report].
Procedure in a Summons-Case
(1) Substance of accusation to be stated- When the accused appears or is brought before the
Magistrate, the particulars of the accusation shall be stated to him but it is not necessary to frame a
formal charge against him. The court shall then ask the accused person whether he pleads guilty, or
has any defence to make [Sec. 251].
The provisions of the Code relating to joinder of charges and joint trial, however, apply to the trial
of summons-cases. If a summons-case is tried jointly with a warrant-case, the procedure of the
warrant-case is to be followed. A charge' will then have to be drawn up for the summons-case also.
(2) Conviction on plea of guilty - If the accused pleads guilty, the Magistrate shall record the plea as
nearly as possible in the words used by the accused and may convict him thereon [Sec. 252].
Thus, even if an accused pleads guilty, the Magistrate is not bound to convict him, if he
thinks it necessary to have evidence of his guilt or the prosecution report does not make out an
offence under a statute [Purushottam Subra v State, 1992 CrLJ 1417 (Ori)].
(3) Conviction on plea of guilty in absence of accused in petty cases - If summons has been issued
under Sec. 206 (i.e. in cases of petty offences), and the accused desires to plead guilty without
appearing before the Magistrate, he shall transmit to the Magistrate a letter containing his plea and
also the amount of fine specified in the summons. The Magistrate may then convict the accused in
his absence, and sentence him to pay the specified fine. A pleader may also plead guilty on behalf of
the accused [Sec. 253]. This section is meant for the speedy disposal of petty cases.
(4) Procedure when not convicted: Hearing of the prosecution/defence case-If the Magistrate does
not convict the accused (under Sec. 252 or Sec. 253), the Magistrate shall proceed to hear the
prosecution and accused and take all such evidence as may be produced in support of the
prosecution or defence [Sec. 254(1)].
The Magistrate shall first hear the prosecution and then the accused. If the accused admits some or
all of the charges alleged by the prosecution but pleads "not guilty", Sec. 254 will apply. Under Sec.
254(2), the Magistrate may issue process to compel the attendance of any witness either on the
application of the complainant or of the accused. However, if the prosecution has made an
application for the issue of summons to its witnesses, it is the duty of the court to issue summons
and to secure the witness by exercising all the powers given to it under the Code [State v Veerappan
AIR 1980 Mad 260 (F.B.)].
(5) Acquittal or conviction - If the Magistrate, after taking the entire evidence adduced in the case
(including evidence as he may, of his own motion, cause to be produced), finds the accused not
guilty, he shall record an order of acquittal [Sec. 255(1)]. Where the Magistrate does not proceed in
accordance with the provisions of Sec. 325 or Sec. 360 he shall, if he finds the accused guilty, pass
sentence upon him according to law [Sec. 255(2)].
Sec. 255(3) gives the Magistrate discretion to proceed in those cases where the evidence for the
prosecution establishes an offence other than that referred to in the complaint or summons.
However, the offence of which the accused may be convicted must appear to have been committed
from the facts admitted by the accused or proved against him. Further, it should be seen that the
accused is not prejudiced by the consideration of some charge of which he knew nothing. Thus, as
per Sec. 255(3), a person summoned for criminal trespass can be convicted of assault and mischief.
SUMMARY TRIALS
Chapter XXI (Secs. 260-265) deals with the procedure to be followed in summary trials. A 'summary
trial' implies speedy disposal. A summary case can be tried and disposed of at once. Thus, it is not
intended for a contentious and complicated case which merits a full and lengthy inquiry.
The object of summary trial is to have a record which is sufficient for the purpose of justice, and yet,
not so long as to impede a speedy disposal of the case. Thus, a summary trial is "summary" only in
respect of the record of its proceedings, and not in respect of proceedings themselves, which should
be complete and carefully conducted, as in any other criminal case. "Short cuts in procedure in
criminal cases are not without risks; but in view of the safeguards provided as to...summary
jurisdiction is justifiable."
In a summary trial, all cases should be tried by the summons procedure, whether the case is a
summons-case or warrant-case. At the conclusion of the trial, the Magistrate enters accused's plea
and the finding in a prescribed form. No formal charge is framed. There is no appeal in such a trial if
a sentence of fine only not exceeding Rs. 200 have been awarded. There can be an application for
revision to the High Court. Summary procedure though legal, is inappropriate in cases in which
Government servants are the accused persons because their conviction is likely to result their
dismissal from service which is a serious loss to them [Ram Lochan, 1978 CrLJ 544 (All)].
Power to Try Summarily
Notwithstanding anything contained in this Code, any Chief Judicial Magistrate/ Metropolitan
Magistrate/ First Class Magistrate specially empowered by the High Court, may, if it thinks fit, try
the offences (specified below) in a summary manner [Sec. 260(1)]. However, if in the course of a
summary trial, it appears to him that the nature of the case is such that it is undesirable to try it in a
summary fashion, the Magistrate may recall any already examined witness and rehear the case
afresh [Sec. 260 (2)].
The following nine offences have been singled out by Sec. 260(1) for summary trials:
(i) Offences not punishable with death, life-imprisonment or imprisonment for a term exceeding 2
years.
(ii) Theft (Secs. 379-381, IPC) of property not exceeding Rs. 2,000.
(iii) Receiving/retaining stolen property not exceeding Rs. 2,000.
(iv) Assisting in the concealment/disposal of such stolen property.
(v) Lurking house trespass (Secs. 454/456, IPC).
(vi) Insult with intent to provoke a breach of the peace (Sec. 504 IPC), and, criminal intimidation
punishable with imprisonment for a term which may extend to two years, or with fine, or with both
(Sec. 506, IPC).
(vii) Abetment of any of the foregoing offences. (viii) An attempt to commit any of the foregoing
offences, when such attempt is also an offence.
(ix) Any offence constituted by an act in respect of which a complaint may be made under Sec. 20,
Cattle Trespass Act, 1871.
Procedure/Record in Summary Trials
In summary trials, the procedure specified for the trial of summons-case is to be followed [Sec.
262(1)], subject to the following three qualifications:
(1) No sentence of imprisonment for more than 3 months can be passed in any conviction under
this Chapter [Sec. 262(2)].
(2) In every case tried summarily, the Magistrate must enter the following particulars:
(a) serial number of case;
(b) date of commission of offence;
(c) date of report/complaint;
(d) name of complainant;
(e) name, parentage and residence of the accused;
(f) offence complained of, and the offence (if any) proved, and value of the property in respect of
which the offence has been committed (where applicable);
(g) plea of the accused and his examination (if any);
(h) finding;
(i) sentence/other final order; and
(j) date on which the proceedings terminated [Sec. 263].
(3) In every case tried summarily in which the accused does not plead guilty, the Magistrate shall
record the substance of the evidence and a judgment containing a brief statement of the reasons for
the finding [Sec. 264]. Every such record and judgment shall be written in the language of the court
and signed by the Magistrate [Sec. 265].
WITHDRAWAL FROM PROSECUTION [SEC. 321]
Justice ordinarily demands that every case must reach its destination, and should not be
interrupted en route. Sec. 321, however, enables the Public Prosecutor/Assistant P. P. to withdraw
from the prosecution of any person either generally or in respect of any one or more of the offences
for which he is tried. Such withdrawal may be done with the consent of the court at any time before
the judgment is pronounced. If withdrawal takes place before the charges are framed, the accused
can only be discharged, but the accused would be entitled to acquittal, if the prosecution is
withdrawn after the framing of the charge or when under this Code no charge is required.
The previous approval of the Central Government is also required for such withdrawal (unless the
Prosecutor has been appointed by the Central Government), if the offence (i) was against any law
relating to a matter to which the executive power of the Union extends, or (ii) was investigated by
the Delhi Special Police, or (iii) involved the misappropriation, destruction, etc. of any Central
Government property, or (iv) was committed by a Central Government employee while on official
duty [Proviso, Sec. 321].
Sec. 321 is not applicable to security proceedings, as there is no discharge or acquittal of the
accused in such proceedings. It may be noted that withdrawal from prosecution really means
withdrawal of appearance from the prosecution or refraining from conducting or proceeding with
the prosecution. However, when such withdrawal is permitted by the court it will have the effect of
discharge or acquittal of the accused.
It shall be the duty of Public Prosecutor to inform the court and it shall be duty of court to apprise
itself of reasons which prompt the Prosecutor to withdraw from the prosecution [Rajinder K. Jain v
State AIR 1980 SC 1510]. Sec. 321 does not indicate the reasons which should weigh with the
Prosecutor to move the court nor the grounds on which the court will grant or refuse permission;
but the essential consideration which is implicit in the grant of the power is that it should be in the
interest of administration of justice. The considerations weighing with the prosecuting authority
may be either that it will not be able to produce sufficient evidence to sustain the charge or
subsequent information before it will falsify the prosecution evidence or other similar
circumstances [M.N.S. Nair v P. Balakrishnan AIR 1972 SC 496].
Fair Trial : Rights of accused and victims
Fair Trial
A person accused of any offence should not be punished unless he has been given a 'fair trial and his
guilt has been proved in such trial. The requirements of a fair trial relate to the character of the
court (unbiased judge), the venue (atmosphere of judicial calm), the mode of conducting the trial
(fair prosecutor; no prejudices or threats against the witnesses), rights of the accused in relation to
defence and other rights (Law Commission, 37th Report).
The fair conduct of a trial upholds the dignity of man in a free society which diligently guards the
rights, claims and privileges of its citizens against any encroachment upon them. Denial of a fair
trial is as much. injustice to the accused as is to the victim and the society.
The fair trial for a criminal offence consists not only in technical observance of the frame and forms
of law, but also in recognition and just application of its principles in substance, to find out the truth
and prevent miscarriage of justice. In fact, the primary object of criminal procedure is to ensure a
fair trial to every person accused of any crime.
Independent Impartial and Competent Judges
The most indispensable condition for a fair criminal trial is to have an independent, impartial and
competent judge to conduct the trial.
Sec. 479. Case in which judge/magistrate is personally interested - "No judge or magistrate shall,
except with the permission of the court to which an appeal lies from his court, try or commit for
trial any case to or in which he is a party, or personally interested, and no judge or magistrate shall
hear an appeal from any judgment/order passed or made by himself."
No man ought to be a judge in his own cause (Nemo debet esse judex in propria causa). The essence
of the section is that justice should be so administered as to satisfy a reasonable person that his
tribunal was impartial and unbiased. The question is not whether a bias has actually affected the
judgment. The real test is whether there exists a circumstance according to which a litigant could
reasonably apprehend that a bias attributable to a judicial officer must've operated against him in
the final decision of the case. It is in this sense it is often said that 'justice should not only be done
must also appear to be done' (Shyam Singh v State, 1973 Cr LJ 441).
Sec. 479 also clarifies that a Judge/ Magistrate cannot be deemed to be a party to, or personally
interested in any case merely (a) because he is concerned therein in a public capacity, or (b)
because he has viewed the place where the offence is alleged to have been committed (or any other
material place), and has made an inquiry in connection with the case.
Court's Power and Duty to Examine the Accused Person
In every inquiry or trial, for the purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him, the court:
(a) may, at any stage, put such question to him as the court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for
his defence, question him generally on the case [Sec. 313(1)].
The significance of Sec. 313 is to benefit the accused. The object of empowering the court to
examine the accused is to give him an opportunity of explaining the circumstances which appear
against him (i.e. tend to incriminate him). Thus, for instance, if a knife is found in the house of the
accused, and if this is likely to point an incriminating finger at his implication in a crime, he should
be given an opportunity to explain how that knife was found in his house [Keki Bejonji v State of
Bombay AIR 1961 SC 967]. This is of immense help to the accused person, particularly when he is
undefended.
The answers given by the accused can be taken into consideration for judging the innocence or guilt
of the accused. The above provision is not intended to enable the court to cross-examine the
accused for the purpose of trapping him or beguiling him into an admission of a fact which the
prosecution has failed to establish [P. Murugan, 1973 CrLJ 1256 (Mad)]. The court in examining
must avoid incriminating questions. However, an incriminating circumstance admitted by the
accused should not be altogether ignored [State of U.P. v Lakhmi, 1998 CrLJ 1411 (SC)]. The section
cannot be used for the purpose of ascertaining what the accused's defence is. The court in its
examination under Sec. 313 cannot question the accused about a previous conviction.
The other important features of Sec. 313 are:
(I) No oath shall be administered to the accused when he is examined [Sec. 313(2)].
(ii) The accused shall not render himself liable to punishment by refusing to answer such questions,
or by giving false answers to them [Sec. 313(3)].
(iii) The answers given by the accused may be taken into consideration in such inquiry or trial, and
put in evidence for or against him in any other inquiry/trial for any other offence [Sec. 313(4)]. For
example, if in a trial for murder he says that he concealed the dead body and did not kill the victim
his statement may be used as evidence against him in a subsequent trial.
2008 Amendment of Sec. 313

In Sec. 313, after sub-sec. (4), the following sub-sec. shall be inserted, namely:
"(5) The court may take help of Prosecutor and Defence Counsel in preparing relevant questions
which are to be put to the accused and the Court may permit filing of written statement by the
accused as sufficient compliance of this section.
This amendment eliminates delay in trial, by providing that the Court may take help of Prosecutor
and Defence Counsel in preparing relevant questions to be put to the accused.
A statement of an accused under Sec. 313 is not strictly evidence, as he does not depose as a witness
because no oath is administered to him. However, an accused person while still under trial can be
examined on oath in a separate case. When accused persons are tried separately, each one, though
implicated in the same offence, is a competent witness at the trial of the other. When an accused has
pleaded guilty, he ceases ipso facto to be an accused person, still more so, when he has been
convicted. Sec. 313 has no application to him [Mohammad Yusuf (1931) 58 Cal 1214]. However, no
accused can be convicted simply because he admitted guilt despite his non-implication in the
offence by all witnesses since the statement under Sec. 313 does not constitute evidence [State v
Sheikh Khadher Sheikh Buden, 1991 CrLJ 3208 (Karnt)].
Non-Compliance with Sec. 313
Every error or omission in complying with Sec. 313 does not necessarily vitiate the trial; the
question depends upon the degree of error and upon whether prejudice has been or is likely to
have been caused to the accused. [Bibhuti's case, above]. In Makan Jivan v State of Gujarat (AIR
1971 SC 1797), the trial court after reading out the statements made by the accused in the
committal court merely asked him as to what he had to say about the prosecution evidence
recorded in his presence. It was held that the examination was highly defective, but in view of the
plea of the accused that he was not present at the scene at the time of the occurrence, any further
question to him would have been purposeless and so there was no prejudice.
If an accused is not asked questions on his motive for the crime, it may prejudice him and thus
vitiate the trial [Ajit Kumar v State of Bihar (1972) 2 SCC 451]. If the State relies in the Supreme
Court on any particular circumstance as being sufficient to sustain a conviction, it will be open to an
accused to plead in answer that that particular circumstance was not put to him in his examination
under Sec. 313 or Sec. 281 [Kaur Sain AIR 1974 SC 329]. In H. Singh v State of Punjab (AIR 1966 SC
97), the apex court observed that in many cases the accused person would prefer to file a written
statement and give a connected answer to the questions raised by the prosecution evidence.
(5) Rights of the Accused Person
(a) Right of accused to know of the accusations - Fair trial requires that the accused person is given
adequate opportunity to defend himself. Thus, when he is brought before the court for trial, the
particulars of the offence of which he is accused shall be stated to him (Secs. 251, 240, etc.).
(b) The accused person to be tried in his presence - The personal presence of the accused
throughout the trial would enable him to understand properly his case. This would facilitate in the
making of the preparations for his defence. A criminal trial in the absence of accused is unthinkable.
Sec. 317 makes an exception to the above rule (Provisions for inquiries and trial being held in the
absence of accused in certain cases').
(c) Evidence to be taken in presence of accused - According to Sec. 273, except as otherwise
expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in
the presence of the accused, or, when his personal attendance is dispensed with, in the presence of
his pleader.
(d) Accused person can be a competent witness but not against himself - According to Sec. 315, the
accused can be a competent witness for the defence and can give evidence in disproof of the
charges made against him or against his co-accused.
Art. 20(3) of the Constitution of India ("No person accused of any offence shall be compelled to be a
witness against himself) is to noted in this context. In Nandini Satpathy v P.L. Dani AIR 1978 SC
1025, the Supreme Court considered the parameters of Sec. 161 of Cr.P.C. and the scope and ambit
of Art. 20(3). During the police investigation, a list of questions was provided to the appellant and
she refused to answer those questions on the ground that the answers might expose her to other
criminal cases. Their Lordships observed that Art. 20(3) was a shield against all self-incriminating
evidence. Where the person apprehended that the answers might expose him/her to criminal
involvement in that or in any other case, he/she may keep his/her mouth shut.
(e) No influence to be used to an accused person to induce disclosures - According to Sec. 316, no
influence by means of any promise or threat or otherwise shall be used to an accused person to
induce him to disclose or withhold any matter within his knowledge.
However, this does not affect Secs. 306 and 307, dealing with tender of pardon to an accomplice.
(f) Right of accused person to cross-examine prosecution witnesses A criminal trial which denies
the accused person the right to cross examine prosecution witnesses is based on weak foundation,
and cannot be considered as a fair trial.
(g) Right to be defended by a lawyer of his choice (Sec. 303)/Legal aid to accused at State expense
in certain cases (Sec. 304)
Article 21 of the Constitution provides that no person shall be deprived of his life or personal
liberty except according to procedure established by law. Speedy justice and fair trial to a person
accused of a crime are integral part of Article 21; these are imperatives of the dispensation of
justice. In every criminal trial, the procedure prescribed in the Code has to be followed, the laws of
evidence have to be adhered to and an effective opportunity to the accused to defend himself must
be given. If an accused remains unrepresented by a lawyer, the trial court has a duty to ensure that
he is provided with proper legal aid.
Article 22(1) of the Constitution provides that no person who is arrested shall be detained in
custody without being informed of the grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his choice.
MOHD. AJMAL AMIR KASAB V STATE OF MAHARASHTRA [(2012) 9 SCC 1]
In this case, a Pakistani terrorist when arrested by the Indian. police refused the services of an
Indian lawyer at the pre-trial stage. It was only later that he agreed for it. The court held that the
right to be represented by a lawyer is also available at the pre trial stage; but, in view of the fact that
the accused himself refused the request of lawyer initially, thus, it could not be said that he was
prejudiced in the trial.
The right to free legal services would be illusory for an indigent accused unless the Magistrate or
the Sessions Judge before whom he is produced informs him of such right.] In this case, it was
contended that Article 22(1) of the Constitution.
merely allows an arrested person to consult a legal practitioner of his choice and the right to be
defended by a legal practitioner crystallizes only at the stage of commencement of the trial in terms
of Sec. 304,CrPC. The Court said: We feel that such a view is quite incorrect and insupportable for
two reasons. First, such a view is based on an unreasonably restricted construction of the
Constitutional and statutory provisions; and second, it overlooks the socio-economic realities of the
country. The Constitution and the body of laws are not frozen in time. They comprise an organic
structure developing and growing like a living organism. The law, in order to serve the evolving
needs of the Indian people, has made massive progress through Constitutional amendments,
legislative action and, not least, through the pronouncements by this Court. Article 39-A came to be
inserted in the Constitution by the Constitution (42nd Amendment Act, 1976). In furtherance to the
ideal of Article 39-A, Parliament enacted the Legal Services Authorities Act, 1987.
All this development clearly indicates the direction in which the law relating to access to
lawyers/legal aid has developed and continues to develop. It is now rather late in the day to
contend that Article 22(1) is merely an enabling provision and that the right to be defended by a
legal practitioner comes into force only on the commencement of trial as provided under Sec. 304,
CrPC. In Khatri (II), this Court reiterated that the right to free legal aid is an essential ingredient of
due process, which is implicit in the guarantee of Article 21 of the Constitution. "Moreover, this
constitutional obligation to provide free legal services to an indigent accused does not arise only
when the trial commences but also attaches when the accused is for the first time produced before
the magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person
is arrested and produced before a magistrate, for it is at that stage that he gets the first opportunity
to apply for bail and obtain his release as also to resist remand to police or jail custody."
The Court further said: "But even this right to free legal services would be illusory for an indigent
accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of
such right. The Magistrate or the Sessions Judge before whom the accused appears must be held to
be under an obligation to inform the accused that if he is unable to engage the services of a lawyer
on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the
State... Unless he is not willing to take advantage of the free legal services provided by the State, he
must be provided legal representation at the cost of the State... We, accordingly, direct all the
magistrates in the country to faithfully discharge the aforesaid duty and obligation and further
make it clear that any failure to fully discharge the duty would make the concerned magistrate
liable to departmental proceedings.
The Court, in the present case, observed: It needs to be clarified here that the right to consult and be
defended by a legal practitioner is not to be construed as sanctioning or permitting the presence of
a lawyer during police interrogation. According to our system of law, the role of a lawyer is mainly
focused on court proceedings. The accused would need a lawyer to resist remand to police or
judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he
intended to make a confessional statement in terms of Sec. 164, CrPC; to represent him when the
court examines the charge-sheet submitted by the police and decides upon the future course of
proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial.
Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the
trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask
for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a
lawyer before commencing the trial. Unless the accused voluntarily makes an informed decision
and tells the court, in clear and unambiguous words, that he does not want the assistance of any
lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at
the commencement of the trial is absolute, and failure to do so would vitiate the trial and the
resultant conviction and sentence, if any, given to the accused (Suk Das v UT of Arunachal
Pradesh).
But the failure to provide a lawyer to the accused at the pre trial stage may not have the same
consequence of vitiating the trial. It may have other consequences like making the delinquent
magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation
against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is
shown that failure to provide legal assistance at the pre-trial stage had resulted in some material
prejudice to the accused in the course of the trial. That would have to be judged on the facts of each
case.
The appellant's refusal to accept the services of an Indian lawyer and his demand for a lawyer from
his country cannot be anything but his own independent decision. The demand for a
Pakistani lawyer in those circumstances, and especially when Pakistan was denying that the
appellant was even a Pakistani citizen, might have been impractical, even foolish, but the man
certainly did not need any advice from an Indian court or authority as to his rights under the Indian
Constitution. He was acting quite independently and, in his mind, he was a "patriotic" Pakistani at
war with this country. On March 23, 2009, the appellant finally asked for a lawyer, apparently
convinced by then that no help would come from Pakistan or anywhere else. He was then
immediately provided with a set of two lawyers.
The Court held: In the aforesaid facts we are firmly of the view that there is no question of any
violation of any of the rights of the appellant under the Indian Constitution He was offered the
services of a lawyer at the time of his arrest and at all relevant stages in the proceedings. We are
also clear in our view that the absence of a lawyer at the pre-trial stage was not only as per the
wishes of the appellant himself, but that this absence also did not cause him any prejudice in the
trial.
MOHD. HUSSAIN JULFIKAR ALI V THE STATE (GOVT. OF NCT) DELHI

[2012 (9) SCC 408]
The need of retrial of the accused is necessary, if in the opinion of the Court it becomes
indispensable to obviate the failure of justice. A de novo trial should be the last resort and that too
only when such a course becomes so desperately indispensable. Direction for retrial should not be
made in all or every case where acquittal of accused is for want of adequate or reliable evidence.
A court of appeal or revision is not powerless to interfere, if it is found that the accused was so
handicapped for want of legal aid (i.e. to engage a lawyer) that the proceedings against him may be
said to amount to negation of a fair trial.]
In this case, the Apex Court was called upon to decide in an appeal the issue on reference by a two-
Judge Bench, whether the matter requires to be remanded for a de novo trial in accordance with
law or not? The issue was whether the appellant was denied due process of law and whether the
conduct of trial was contrary to the procedure prescribed under the provisions of the Code and, in
particular, that he was not given a fair and impartial trial and was denied the right of the counsel.
The Apex Court observed: "The accused of a crime is entitled to a counsel which may be necessary
for his defence, as well as to facts as to law. The necessity of counsel was so vital and imperative
that the failure of the trial court to make an effective appointment of a counsel was a denial of due
process of law and a breach of mandatory provisions of Sec. 304 CrPC. "A two-Judge Bench of this
Court in Tyron Nazareth v State of Goa, after holding that the conviction of the appellant was
vitiated as he was not provided with legal aid in the course of trial, ordered retrial.
In State of M.P. v Bhooraji this Court stated, "It should be limited to the extreme exigency to avert 'a
failure of justice'. Any omission or even the illegality in the procedure which does not affect the core
of the case is not a ground for ordering a de novo trial." The Court went on to say further as follows:
This is because the appellate court has plenary powers for revaluating and reappraising the
evidence and even to take additional evidence by the appellate court itself or to direct such
additional evidence to be collected by the trial court. But to replay the whole laborious exercise
after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons
to the court once again for repeating the whole depositions would be a sheer waste of time, energy
and costs unless there is miscarriage of justice otherwise. The superior court which orders a de
novo trial cannot afford to overlook the realities and the serious impact on the pending cases in
trial courts, and how much that order would inflict hardship on many innocent persons who once
took all the trouble to reach the court and deposed their versions in the very same case. To them
and the public the re-enactment of the whole labour might give the impression that law is more
pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people
but for the process of justice dispensation."
In the present case, the Apex Court observed: 'Speedy trial' and 'fair trial' to a person accused of a
crime are integral part of Article 21. There is, however, qualitative difference between the right to
speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of
the right to speedy trial does not per se prejudice the accused in defending himself. The right to
speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay
in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere
lapse of several years since the commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's
right to speedy trial have to be weighed vis-a-vis the impact of the crime on society and the
confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not
preclude the rights of public justice.
The nature and gravity of crime, persons involved, social impact and societal needs must be
weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the
former the long delay in conclusion of criminal trial should not operate against the continuation of
prosecution and if the right of accused in the facts and circumstances of the case and exigencies of
situation tilts the balance in his favour, the prosecution may be brought to an end. These principles
must apply as well when the appeal court is confronted with the question whether or not retrial of
an accused should be ordered.
(h) Right of accused person to have a speedy trial Justice delayed is justice denied. A criminal trial
which drags on for us reasonably long time is not a fair trial, as any delay keeps the accused
constant fear and psychological torture. The Cr.P.C. does not confer a right on the accused to have
his case decided expeditiously. However, if the accused is in detention and the trial is not completed
within 60 days from the first date fixed for hearing he shall be released on bail [Sec. 437(6)]. But
this only mitigates the hardship of the accused person and does not give him speedy trial.
Sec. 309 (1) gives direction to the courts with a view to have speedy trials and quick disposals: "In
every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular,
when the examination of witnesses has once begun, the same shall be continued from day to day
until all the witnesses in attendance have been examined". The right of the accused in this context
has been recognised but the real problem is how to make it a reality in actual practice.
Right against 'double jeopardy' - According to Art. 20(2) of the Constitution and Sec. 300 of the
Code, if a person is tried and acquitted or convicted of an offence he cannot be tried again for the
same offence or on the same facts for any other offence. When once a person has been convicted or
acquitted for any offence by a competent court, any subsequent trial for the same offence would
certainly put him in jeopardy and in any case would cause him unjust harassment. Such a trial can
be considered anything but fair.
Right against Ex-post-facto laws - According to Art. 20(1) of the Constitution: "No person shall be
convicted of any offence except for violation of the law in force at the time of the commission of the
act charged as an offence, nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence."
Article 20(1) deals with ex-post-facto laws though that expression has not been used in the Article.
Ex-post-facto laws are laws adopted after an act is committed making it illegal although it was legal
when done, or increasing the penalty for a crime after it is committed. In the field of criminal law an
ex post facto legislation, is prohibited. Though a sovereign legislature has power to legislate
retrospectively creation of an offence for an act which at the time of its commission was not an
offence or imposition of a penalty greater than that which was under the law provided violates Art.
20(1). All that Art. 20(1) prohibits is ex-post facto laws and is designed to prevent a person being
punished for an act or omission which was considered innocent when done. It only prohibits the
conviction of a person or his being subjected to a penalty under ex-post facto laws.
(k) Right to have reasoned decisions - It is a basic requirement of every trial is that the court is to
notice, consider and discuss however briefly the evidence of various witnesses as well as arguments
addressed at the bar [Mukhtir Singh v State of Punjab (1995) 1 SCC 760].
Courts to be Open to the Public
The place in which any criminal court is held for the purpose of inquiring into or trying any offence
is to be deemed to be an open court to which the general public may have access, so far as the same
may conveniently accommodate them. However, the presiding Judge/Magistrate may, if he thinks
fit, order at any stage of the proceeding that the public generally, or any particular person, should
not be allowed to enter or remain in the room building used by the court [Sec. 327].
2008 Amendment of Sec. 327
In Sec. 327(2), after the proviso, the following proviso shall be inserted, namely:
"Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or
Magistrate":
In Sec. 327(3), the following proviso shall be inserted, namely:
"Provided that the ban on printing or publication of trial proceedings in relation to an offence of
rape may be lifted, subject to maintaining confidentiality of name and address of the parties."
This amendment amends Sec. 327 of the Code which deems Criminal Court to be an open Court.
Fair Trial and Power of Supreme Court to Transfer Cases/ Appeals
If the Supreme Court considers it expedient for the ends of justice to do so, it may direct that any
particular case or appeal be transferred (1) from one High Court to another High Court, or (ii) from
a criminal court subordinate to one High Court to another criminal court (of equal or superior
jurisdiction) subordinate to another High Court [Sec. 406(1)].
The Supreme Court may act under this section only on the application of the Attorney-General of
India or of an interested party. Every such application shall be made in the form of a motion
supported by affidavit or affirmation except when the applicant is the Attorney-General of India or
the Advocate-General of a State [Sec. 406(2)]. Where a transfer application has been dismissed, and
it is found to be frivolous or vexatious, the Supreme Court may order the applicant to pay
appropriate compensation (not exceeding Rs. 1,000) to any person opposing the transfer
application [Sec. 406(3)].
The words "party interested" would normally include the complainant, the Public Prosecutor, and
the accused and may even cover a person lodging the F.I.R. Assurance of fair trial is the first
imperative of the dispensation of justice. Under this section, the Supreme Court will transfer. a case
if there is a reasonable apprehension on the part of a party to a case that justice will not be done
[GD. Chadda v State of Rajasthan AIR 1966 SC 1418]. The central criterion for directing a transfer is
not the hypersensitivity or relative convenience of a party. Something more substantial, more
compelling, more imperiling from the point of view of public justice is necessary for directing a
transfer. The complainant had a right to choose the forum and the accused could not dictate where
the case should be tried [Maneka Sanjay Gandhi v Rani Jethmalani AIR 1979 SC 468].
For instance, if in a certain court the whole Bar for any reason refuses to defend an accused person,
of if there are persistent turbulent conditions putting the life of the complainant or the accused in
danger or creating chaos inside the court hall, or if there is general atmosphere of tension vitiating
the necessary neutrality to hold a detached judicial trial, a transfer of the case would be justified
[Maneka Gandhi's case, above]. Transfer may be ordered on the ground of poverty of the petitioner
[Inder Singh AIR 1979 SC 1720].
The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable
and not imaginary, based upon conjectures and surmises. No universal or hard and fast rules can be
prescribed for deciding a transfer petition which has always to be decided on the basis of the facts.
of each case. Convenience of the parties including the witnesses to be produced at the trial is also a
relevant consideration for deciding the transfer petition. The convenience of the parties does not
necessarily mean the convenience of the petitioners alone who approached the court on
misconceived notions of apprehension. Convenience for the purposes of transfer means the
convenience of the prosecution, other accused, the witnesses and the larger interest of the society
[Monica v State of Rajasthan AIR 2010 SC 103].
Vague apprehension that the accused might transfer the witnesses of the prosecution was not
sufficient to oppose the transfer [A.K.K. Nambiar AIR 1973 SC 203]. In a case, the husband filed a
defamation complaint against his wife at place Y. His wife had also filed a complaint against him at
place, X. Wife pleaded that she apprehended physical harm from her husband at place Y. It was held
that if there was evidence to show that the apprehension of wife was reasonable, the defamation
case at Y should be transferred to place X [Sesamma Phillip v Phillip AIR 1963 SC 875].
Where a Magistrate in whose court the case of which transfer is sought is pending makes an
affidavit strongly opposing the transfer, it is a fit case for transfer. Because, in such a case, all
essential attributes of a fair and impartial trial, are put in jeopardy [Kaushalaya Devi v Mool Raj
(1964) 1 CrLJ 233 (SC)].
ZAHIRA HABIBULLA H. SHEIKH V STATE OF GUJARAT ("Best Bakery

Case") [2004 Cr.LJ. 2050 (SC))]
The Apex Court ruled that it can order transfer even without the request of a party if it is convinced
that such a step is necessary in the interest of justice.
It was held that the Supreme Court as an appellate court can in exercise of its plenary powers under
Art. 136 of the Constitution fix place or court which should undertake retrial. The fact that there is
no formal application seeking transfer of case is immaterial. Transfer of case can be ordered as
incidental or ancillary relief to main relief.]
In this case, the Apex Court ruled that it can order transfer even without the request of a party if it
is convinced that such a step is necessary in the interest of justice. Both the State and a star witness
(Zahira) approached the Supreme Court seeking the re-trial as the trial was not conducted properly
due to the witnesses turning hostile and non-cooperation of the Public Prosecutor. The Supreme
Court not only ordered re-trial but also transferred the case to the State of Maharashtra.
In retaliation to avenge the killing of 56 persons burnt to death in the train near Godhra (Gujarat), a
business concern "Best Bakery" at Vadodara was burnt down by an unruly mob killing 14 persons
in the incident. Zahira, the appellant, was the main eyewitness who lost her family members in the
incident. Many persons other than Zahira were also eye witnesses. During trial the eyewitnesses
resiled from the statements made during investigation. The trial court directed acquittal of the
accused persons. Zahira approached the National Human Rights Commission (NHRC) stating that
she was threatened by powerful politicians not to depose against the accused persons. The State
also filed an appeal against the judgment of acquittal before the Gujarat High Court which upheld
the acquittal of the accused. The State also prayed for adducing additional evidence under Sec. 391,
Cr PC and/or directing re-trial, which was rejected by the High Court. Then, Zahira and an NGO filed
a Special Leave Petition (SLP) in the Supreme Court challenging the judgment of acquittal affirmed
by the High Court of Gujarat.
The Supreme Court in appeal against acquittal considered additional evidence and ordered re-trial
outside State on grounds. of faulty investigation, distorted trial and tainted evidence being
tendered. It held: The accused persons have been acquitted by the Trial Court and the acquittal has
been upheld by the High Court but if the acquittal is unmerited and based on tainted evidence,
tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/
terrorized witnesses, it is no acquittal in the eye of law and no sanctity can be attached to the so
called findings.
It was held that the principles of the rule of law and due process are closely linked with human
rights protection. Such rights can be protected effectively when a citizen has recourse to law. A trial
which is primarily aimed at ascertaining truth has to be fair to all concerned viz. the accused, the
victim, the witnesses and the society. Denial of fair trial is as much an injustice to the accused as is
to the victim and the society. Fair trial obviously would mean a trial before an impartial judge and a
fair prosecutor. It means a trial in which bias or prejudice for or against the accused, the witnesses
or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give
false evidence that also would not result in fair trial. The failure to hear material witnesses is
certainly denial of fair trial.
The Court also observed that in a criminal case the fair trial entails triangulation of interests of the
accused, the victim and the society. The Court further observed that "interests of the society are not
to be treated completely with disdain and as persona non grata."
Withdrawal of Cases by Sessions Judge
A Sessions Judge may withdraw or recall any case/appeal, which he has made over to any Asst.
Sessions Judge/CJM subordinate to him [Sec. 409(1)]. Likewise, he can recall any case/appeal made
over by him to any Additional Sessions Judge before the actual trial of the case or the hearing of the
appeal has started [Sec. 409(2)]. There is no such restriction under sub-sec.(1). When a Sessions
Judge withdraws or recalls a case/appeal, he may either try the case in his own court, or make it
over to another court for trial or hearing.
RIGHTS OF VICTIMS
(wa) Victim
Sec. 2(wa) has been inserted by the 2008 Amendment [Code of Criminal Procedure (Amendment)
Act, 2008 (5 of 2009)] -
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission
for which the accused person has been charged and the expression "victim" includes his or her
guardian or legal heir.
Thus, it introduces a definition of "victim" to confer certain rights on the guardian and legal heirs of
the victim.
Victims of a crime should have legal rights to be informed, present and heard within the criminal
justice system. The core rights for victims of crime include
(I) The right to attend criminal justice proceedings;
(ii) The right to apply for compensation;
(iii) The right to be heard and participate in criminal justice proceedings;
(iv) The right to be informed of proceedings and events in the criminal justice process, of legal
rights and remedies, and of available services;
(v) The right to protection from intimidation and harassment;
(vi) The right to restitution from the offender;
(vii) The right to prompt return of personal property seized as evidence
(viii) The right to a speedy trial; and
(ix) The right to enforcement of these rights.
Rights of Victims under Cr.P.C.
Under the Criminal Procedure Code, of the aforesaid rights, only certain rights have been
guaranteed. Other rights are not recognized at all (e.g. right to protection from intimidation, etc.),
or, recognized partially (e.g. right to compensation, restitution, etc.), or, recognized in principle or
theory but not in practice (e.g. right to speedy trial).
The rights of a victim under the Code are:
(i) Victim as Informant
The victim of a crime sets the criminal justice system in motion by giving information to the police
which is expected to reduce it to writing [Sec. 154(1), 'First Information Report']. The victim as an
informant is entitled to a copy of FIR "forthwith, free of cost" [Sec. 154(2)].
Where the officer in charge of a police station refuses to act upon such information, the victim can
write to the Superintendent of the Police [Sec. 154(3)]. Failing these mechanisms, the victim can
give a complaint to a Magistrate (Sec. 190). If the police refuse to investigate the case for whatever
reason, the police officer is required to notify the informant of that fact [Sec. 157(2)].
(ii) Victim's Role in Investigation
The victim is called upon to confirm the identity of the accused or the material objects, if any,
recovered during the investigation process.
When the victim is a child or woman, Sec. 160 lays down that "no male person under the age
of 15 years or women shall be required to attend any place other than the place in which such male
person or women resides."
(iii) Compensation to Victims
Sec. 250 (compensation for accusation without reasonable cause), Sec. 357 (order to pay
compensation out of fine), Sec. 358 (compensation up to Rs. 100/- to persons groundlessly
arrested) and Sec. 359 (order to pay cost in non-cognizable cases) of the Cr. P.C., 1973, provide for
payment of compensation and costs to the victims of crime.
Sec. 357
Under Sec. 357, an order of compensation can be passed by the trial court, appellate court/High
Court or Sessions Court in revision, at the time of passing judgment, out of the fine imposed. The
court may order the whole or part of the fine recovered to be applied in the following four cases:
(a) Defraying expenses of prosecution-i.e. expenses properly incurred by the complainant in the
prosecution. An order directing payment of litigation costs to the State cannot be passed unless
substantive sentence of fine was imposed on the accused. The High Court's direction under Sec.
357(1)(a) to the accused on whom no fine was imposed and who was let off on probation was liable
to be set aside [Girdhari Lal v State of Punjab AIR 1982 SC 1229].
(b) Compensation to victim - Any person is entitled to compensation for the loss/injury caused by
the offence, and it includes the "wife, husband, parent and child" of the deceased victim.
In addition to the conviction, the court may order the accused to pay some reasonable amount by
way of compensation to the victim. It is not alternative but in addition thereto. Power to award
compensation to victims should be liberally exercised by courts to meet the ends of justice. Where
the amount fixed was repulsively low so as to make it a mockery of the sentence, it would be
enhanced; the financial capacity of the accused, enormity of the offence, extent of damage caused to
the victim, are the relevant considerations in fixing up the amount [Sebastian v State, 1992 CrLJ
3642 (Ker); Jacob George (Dr) v State of Kerala (1994) 3 SCC 430].
Insertion of New Sec. 357-A (Victim Compensation Scheme)
2008 Amendment: After Sec. 357, the following section shall be inserted, namely:
357-A. Victim compensation scheme
(1) Every State Government in coordination with the Central Government shall prepare a scheme
for providing funds for the purpose of compensation to the victim or his dependents who have
suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District/State Legal
Service Authority shall decide the quantum of compensation to be awarded under the scheme.
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under
Sec. 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge
and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial
takes place, the victim or his dependents may make an application to the State/ District Legal
Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-sec. (4), the State/District
Legal Services Authority shall, after due enquiry award adequate compensation by completing the
enquiry within two months.
(6) The State/District Legal Services Authority, to alleviate the suffering of the victim, may order for
immediate first-aid facility or medical benefits to be made available free of cost on the certificate of
the ponce officer not below the rank of the officer-in-charge of the police station or a Magistrate of
the area concerned, or any other interim relief as the appropriate authority deems fit."
Thus, Sec. 357-A provides for the State Government to prepare, in co ordination with the Central
Government, a scheme called "victim compensation scheme" for the purpose of compensation to
the victim.
Insertion of New Secs. 357-B/357-C 2013 Amendment: After Sec. 357-A, the following sections shall
be inserted, namely:
"357-B. The compensation payable by the State Government under Sec. 357A shall be in addition to
the payment of fine to the victim under Sec. 326A or Sec. 376D of the Indian Penal Code.
"357-C. All hospitals, public or private, whether run by the Central. Government, the State
Government, local bodies or any other person, shall immediately, provide the first-aid or medical
treatment, free of cost, to the victims of any offence covered under Sec. 326A, 376, 376A, 376B,
376C, 376D or Sec. 376E of the Indian Penal Code, and shall immediately inform the police of such
incident."
Judicial Discretion in Sentence of Fine/Compensation
Usually fines are prescribed as punishments or offences which are not of serious type. In case of
some offences it is prescribed as an alternative to or in addition to any other punishment
prescribed for the offence. Usually the law prescribes the maximum limit to which the fine may
extend; the minimum is not normally fixed. The court while exercising the discretion in fixing the
amount may take into consideration several circumstances including the financial condition of the
accused person. Power to impose fine along with a death sentence should be sparingly used. It must
not be excessive [Palaniappa AIR 1977 SC 1323].
MEHMOOD NAYYAR AZAM V STATE OF CHHATTISGARH [(2012) 8 SCC 11

Any treatment meted out to an accused while he is in custody which causes humiliation and mental
trauma corrodes the concept of human dignity. It is the sacrosanct duty of the police authorities to
remember that a citizen while in custody is not denuded of his fundamental right under Article 21
of the Constitution.
Award of compensation against the State is an appropriate and effective remedy for redress of an
established infringement of a fundamental right under Article 21, by a public servant. A
constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in
addition to, the remedy in private law for damages for the tort' resulting from the contravention of
the fundamental right.
In this case, the appellant, while in police custody, was compelled to hold a placard in which
condemning language was written. He was photographed with the said placard and the photograph
was made public. The High Court has recorded that the competent authority of the State has
conducted an enquiry and found the erring officers to be guilty. The High Court has recorded the
findings in the favour of the appellant but left him to submit a representation to the concerned State
authorities. The Apex Court granted an opportunity to the State to deal with the matter in an
appropriate manner but it rejected the representation and stated that it is not a case of defamation.
The appellant was asked to move the court again for defamation meted out to him.
The learned counsel appearing for the appellant, submitted that when the conclusion has been
arrived at that the appellant was harassed at the hands of the police officers and in the
departmental enquiry they have been found guilty and punished, just compensation should have
been awarded by the High Court. It is further urged by him that this Court had directed to submit a
representation to grant an opportunity to the functionaries of the State to have a proper perceptual
shift and determine the amount of compensation and grant the same, but the attitude of
indifference reigned supreme and no fruitful result ensued. It is canvassed by him that it would not
only reflect the non-concern for a citizen who has been humiliated at the police station, but, the
manner in which the representation has been rejected clearly exhibits the imprudent perception
and heart of stone of the State. It is argued that the reasons ascribed by the State authority that
defamation is such a subject that the issue of compensation has to be decided by the competent
court and in the absence of such a decision, the Government cannot take a decision as regards the
compensation clearly reflects the deliberate insensitive approach to the entire fact situation
inasmuch as the High Court, in categorical terms, had found that the allegations were true and the
appellant was harassed and thereby it did tantamount to custodial torture and there was no
justification to adopt a hyper-technical mode to treat it as a case of defamation in the ordinary
sense of the term.
In the aforesaid backdrop, the singular question required to be posed is that whether the appellant
should be asked to initiate a civil action for grant of damages on the foundation that he has been
defamed or this Court should grant compensation on the bedrock that he has been harassed in
police custody. The Court, in the present case, held: Regard being had to the various aspects which
we have analyzed and taking note of the totality of facts and circumstances, we are disposed to
think that a sum of Rs. 5.00 lacs (Rupees five lacs only) should be granted towards compensation to
the appellant and, accordingly, we so direct. The said amount shall be paid by the respondent State
within a period of six weeks and be realized from the erring officers in equal proportions from their
salary as thought appropriate by the competent authority of the State.
Sec. 300 (Rule Against Double Jeopardy)
Sec. 300, Cr.P.C. lays down the rule that a person once convicted or acquitted by a court of
competent jurisdiction cannot be tried again for the same offence on the same facts while the
conviction or acquittal is in force. This principle is based on the maxim nemo debt bis vexari which
means 'a man shall not be twice vexed for one and the same cause. When the accused appears or is
brought before the court, for trial of offence, he can raise the plea that he was earlier tried for the
same offence and was convicted or acquitted of the same and that according to the principle of
autrefois convict or autrefois acquit he cannot be tried again.
The law permits the accused by serving his sentence, if any or by undergoing the ordeal of a trial for
the same offence on a previous occasion, to wipe the state clean and start again, and this he cannot
do, if he were perpetually liable to further prosecution for the same offence based on same facts.
Art. 20(2) of the Constitution recognizes the principle as a fundamental right: "No person shall be
prosecuted and punished for the same offence more than once."
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 to be liable to be tried again for the same offence' [Sec. 300 (1)).
The word 'tried' means that the proceedings have commenced in the court i.e. the court has taken
cognizance of the offence. The word 'tried' therefore does not necessarily implies a decision on
merits. The compounding of an offence under Sec. 320, or a withdrawal from the prosecution by the
Public Prosecutor under Sec. 321, would result in an acquittal of the accused even though the
accused is not tried on merits. Such an acquittal would bar the trial of the accused on the same facts
on a subsequent complaint [Haveli Ram v Munic. Corpn., Delhi (1966) 1 Cr LJ 162].
The dismissal of a complaint, or discharge of the accused is not an acquittal for the purposes of this
section (Explanation to Sec. 300). The reason is the dismissal of a complaint or discharge of the
accused is not considered as the final decisions regarding the innocence of the accused person.
Further, a wrong or erroneous order of acquittal will not bar a subsequent trial, for there has been a
material irregularity.
The crucial requirement for attacking the basic rule [sub-sec. (1)] is that the offences are the same
i.e. they should be identical. It is therefore necessary to analyse and compare not the allegations in
the two complaints but the ingredients of the two offences and see whether their identity is made
out. Where the legislature provides that on the same facts proceedings could be taken under two
different sections, it is obviously intended to treat the two sections as distinct. In such a case, Sec.
300 cannot apply (State of Bihar v Murad Ali Khan 1989 Cr LJ 1005).
(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 might have been made under Sec. 221 [Sec. 300(1)].
Illustration (a): A is tried upon a charge of theft as servant and acquitted. He cannot afterwards,
while the acquittal remains in force, be charged with theft as a servant, or upon the same fact, with
theft simply, or with criminal breach of trust.
Illustration (c): A is charged before the court of session and convicted of the culpable homicide of B.
A may not afterwards be tried on the same facts for the murder of B.
(3) Sec. 300 (2) states that where the second trial is for a distinct offence for which a separate
charge might have been made at the first trial, the trial is not barred. However, in such cases,
consent of the State Government is necessary before a new or fresh prosecution is to be launched.
(4) A person convicted of any offence constituted by any act causing consequences which together
with such act, constituted a different offence from that of which he was convicted, may be
afterwards tried for such last-mentioned offence, if the consequences had not happened, or were
not known to the court to have happened, at the time when he was convicted
Sec. 300 (3) - Thus, the facts or circumstances must be such as to indicate a different kind of offence
of which there was no conviction at first trial.
It may be noted that Sec. 300 (3) is applicable in cases where there is "a person convicted of any
offence" and not where "a person convicted or acquitted of any offence"
Illustration (b): A is tried for causing grievous hurt and convicted. The person injured afterwards
dies. A may be tried again for culpable homicide.
(5) According to Sec. 300 (4), the trial court in the first trial must be competent in its jurisdiction,
otherwise there will be no bar to second trial, as is the case in illustrations (below).
If the court was not so competent it is irrelevant that it would have been competent to try
other cases of the same class or indeed the case against the particular accused in different
circumstances. Thus, where the conviction of a person and the sentence passed on him are set aside
on the ground of want of proper sanction it cannot be said that there was a proper trial at all and
the outcome of the decision cannot operate under Sec. 300 as a bar to a fresh trial after receipt of a
fresh sanction.
Illustration (e): A is charged by a magistrate of the second class with, and convicted by him of, theft
of property from B. A may subsequently be charged with, and tried for, robbery on the same facts.
Illustration (f): A, B and C are charged by a magistrate of first class with. and convicted by him of,
robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.
Decision of the cases in question
The first problem is covered by Sec. 300 (3) and illustration (b) to Sec. 300. A, in his first trial, was
convicted for causing grievous hurt. At that time, the fact of the wife's death had not occurred. Thus,
in his second trial, he could be tried for culpable homicide.
Similarly, in the second case in question, S, in his first trial, was convicted for the offence of rescuing
an under-trial. The causing of grievous hurt to G is a separate offence and is based on different facts
(Sec. 300 (2). Thus, he could be tried for it in his second trial.
In the third case in question, A's contention is not maintainable. In the fourth case in question, A, B,
C cannot be charged and convicted so.
Important Note: If, in the first case in question, A had been acquitted at the first trial, Sec. 300 (3)
would have applied. Thus, in that case, A, in his second trial, could not be tried for culpable
homicide. The test is whether acquittal or conviction from first charge necessarily involves acquittal
or conviction in second charge- 37 Cr. L.J. 992.
Judgement
Discharge and Acquittal
A discharge takes place where there is no prima facie case made out against the accused and he has
not been put on his defence, nor any charge framed against him to which he could plead. But after
the accused has been called upon to enter on his defence or a charge has been framed against him
on a prima facte case having been made out by the prosecution, the accused can either be convicted
or acquitted. After framing of the charge, a Magistrate has no power to drop the proceedings.
In sessions cases, 'discharge' occurs after considering the record of the case, and after hearing the
submission of the parties; in warrant cases, after (i) considering the police report and other
documents, (ii) examining the accused, and (iii) giving the prosecution and the accused an
opportunity of being heard. In sessions, warrant/summons cases, an accused could be 'acquitted'
only after consideration of all the evidence in the case.
An order of discharge is not judgment, rather it leaves the matter indefinite for all purposes of
judicial inquiry. An order of acquittal is in the nature of a final judgment. Discharge does not
establish the innocence of the accused; it only shuts down further inquiry. An order of dismissal of a
complaint is no bar to the entertainment of a second complaint on the same facts but only so in
exceptional circumstances.
A man who is discharged may again be charged with the same offence if other testimony should be
discovered. A revision petition also lies. An order of acquittal establishes the innocence of the
accused as it is a sentence of 'not guilty'. A person once acquitted cannot be tried for the same
offence (Sec. 300). However, an appeal could be filed in such cases.
Discharge of Accused
After considering the record of the case, and after hearing the submission of the parties, if the
Sessions Court considers that there is no sufficient ground for proceeding against the accused, it
shall discharge him and record its reasons for so doing [Sec. 227].
At the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor
proposes to adduce are not to be meticulously judged. The court is only to see whether the material
on record is such on which a conviction can be said to be reasonably possible [State of Bihar v
Ramesh Singh AIR 1997 SC 2018].
If two views are possible and one of them gives rise to suspicion only, as distinguished from grave
suspicion, the trial judge will be empowered to discharge the accused and at this stage he is not to
see whether the trial will end in conviction or acquittal. The Judge is not a mere Post Office to frame
the charge, but has to exercise his judicial mind to the facts of the case in order to determine
whether a case for trial has been made out by the prosecution. The sufficiency of grounds would
take within its fold the nature of the evidence recorded by the police or documents produced before
the court which ex-facie disclosed that there were suspicious circumstances against the accused [P.
Vijayan v State of Kerala AIR 2010 SC 663].
Conviction on Plea of Guilty
If the accused pleads guilty, the judge must record such a plea, and in his discretion, he may convict
him on such plea [Sec. 229].
The plea of guilty amounts to an admission that the accused committed the acts alleged against him.
The accused should plead by his own mouth and not through his counsel or pleader [Sangaya
(1900) 2 Bom LR 751]. But different considerations may arise where the personal attendance of the
accused has been dispensed with and he is permitted to appear by pleader [Kanchan Bai AIR 1959
M.P. 150]. The plea of guilt might be advanced by an accused at any stage of the trial after framing
of the charge [Ram Kishan v State, 1996 CrLJ 441 (All)].
Judgment (Hearing on Sentence)
After hearing the arguments and points of law (if any), the Judge shall give a judgment in the case
[Sec. 235(1)]. Even if the accused is convicted, save in cases of admonition or release on probation
of good conduct (i.e. Sec. 360), the Judge shall hear the accused on the question of sentence, and
then pass sentence on him according to law [Sec. 235(2)].
Sec. 235(2), which is mandatory, did not exist in the old Code of 1898. This provision is according to
the new trend in penology and envisages that after a court holds a person guilty, it must consider
the question of sentencing in the light of various factors such as the prior criminal record of
offender, his age, employment, and the prospects of his returning to normal path of conformity with
the law. Thus, the accused as well the prosecution should be given an opportunity to put forward
their viewpoints on the question of sentence [Santa Singh v State of Punjab AIR 1976 SC 2386].
AJAY PANDIT @ JAGDISH DAYABHAI V STATE OF MAHARASHTRA [(2012) 8 SCC 43]
[Sec. 235(2) clearly states that the hearing has to be given to the accused on the question of
sentence; the provision is mandatory. The obligation is not discharged by putting a formal question
to the accused as to what he has to say on the question of sentence. Even in the absence of adding
any materials by the accused, the Court has duty to elicit any information from whatever sources.
before awarding sentence, especially capital punishment.
In the present case, no genuine effort has been made by the High Court to elicit any information
either from the accused or the prosecution as to whether any circumstance exists which might
influence the Court to avoid and not to award death sentence.]
Death sentence has been awarded by the High Court of Bombay to Ajay Pandit @ Jagdish Dayabhai
Patel for double murder. The learned advocate appearing for the accused submitted that the High
Court has not followed the procedure laid down under Sec. 235(2), Cr.P.C., before enhancing the
sentence of life imprisonment to death. Learned counsel pointed out that having regard to the
object and the setting in which the new provision of Sec. 235(2) was inserted in the 1973 Code,
there can be no doubt that it is one of the most fundamental parts of the criminal procedure and
non-compliance thereof will ex facie vitiate the order.
The Apex Court said: We have to examine whether the High Court has properly appreciated the
purpose and object of Sec. 235(2) Cr.P.C. (viz. hearing the accused on the question of sentence) and
applied the same bearing in mind the fact that they are taking away the life of a human being. The
necessity of inserting sub-sec. (2) was highlighted by the Law Commission in its 41st Report:
"It is now being increasingly recognized that a rational and consistent sentencing policy requires
the removal of several deficiencies in the present system. One such deficiency is the lack of
comprehensive information as to the characteristics and background of the offender. The aims of
sentencing become all the more so in the absence of information on which the correctional process
is to operate. The public as well as the courts themselves are in the dark about the judicial approach
in this regard. We are of the view that the taking of evidence as to the circumstances relevant to
sentencing should be encouraged, and both the prosecution and the accused should be allowed to
co-operate in the process."
In the present case, the Court observed: We find from the records that the High Court has only
mechanically recorded what the accused has said and no attempt has been made to elicit any
information or particulars from the accused or the prosecution which are relevant for awarding a
proper sentence. The accused, course, was informed by the Court of the nature of the show-cause
notice. What was the nature of show cause notice? The nature of the show-cause-notice was
whether the life sentence awarded by the trial court be not enhanced to death penalty. No genuine
effort has been made by the Court to elicit any information either from the accused or the
prosecution as to whether any circumstance exists which might influence the Court to avoid and
not to award death sentence. Awarding death sentence is an exception, not the rule, and only in
rarest of rare cases, the Court could award death sentence. The state of mind of a person awaiting
death sentence and the state of mind of a person who has been awarded life sentence may not be
the same mentally and psychologically. The court has got a duty and obligation to elicit relevant
facts even if the accused has kept totally silent in such situations. In the instant case, the High Court
has not addressed the issue in the correct perspective bearing in mind those relevant factors, while
questioning the accused and, therefore, committed a gross error of procedure in not properly
assimilating and understanding the purpose and object behind Sec. 235(2) Cr.P.C.
The Court held: In such circumstances, we are inclined to set aside the death sentence awarded by
the High Court and remit the matter to the High Court to follow Sec. 235(2) Cr.P.C. in accordance
with the principles laid down.
Pronouncement/Delivery of Judgment (Sec. 353)
The judgment in every trial shall be pronounced in open court by the presiding officer immediately
after the close of the trial or at some subsequent time of which notice shall be given to the parties. It
shall be:
(a) delivered (whole judgment) - after being taken down in short-hand, as soon as it is ready, and
dated and signed by the presiding officer;
(b) read out (whole judgment) - and, dated and signed as above;
(c) read out (operative part of judgment) - and, dated and signed by the presiding officer. The whole
judgment or a copy of it shall be immediately made available to the parties free of cost [Sec. 353(1)-
(4)].
The trial court is required to secure the attendance of the accused at the time of delivering a
judgment of conviction, whether he is in custody or not, except where his personal attendance
during the trial has been dispensed with and the sentence is one of fine only. No such attendance is
required when he is acquitted. In order to avoid delay in the disposal of the case in which there are
two or more accused persons, the court may pronounce the judgment in the absence of any of the
accused persons on the date on which judgment is to be pronounced [Sec. 353(5)-(6)].
A judgment delivered shall not become invalid on account of the absence of any party (or his
pleader) on the day or from the place notified for the delivery thereof or on account of
omission/defect in service of notice of such day and place [Sec. 353(7)]. Nothing in this section shall
limit in any way the extent of the provisions of Sec. 465 [Sec. 353(8)].
Where no material prejudice is caused, the omission to write a judgment at the time of the passing
of the sentence cannot be regarded as an illegality. It is a mere irregularity curable by Sec. 465
[Thaver Issaji Boree (1991) 13 Bom. LR 635]. However, the Allahabad and the Madras High Courts
have held that the sentence is illegal if there is no written judgment when it is passed.
It is a fundamental rule of criminal jurisprudence that the judge who hears the evidence should
write the judgment. Thus, a succeeding judge has no jurisdiction to pronounce a judgment of his
predecessor; what is pronounced by the succeeding judge would be merely an expression of the
opinion of his predecessor on the evidence that he has heard, and the defect cannot be cured by Sec.
465 [Uttam Chand (1960) Raj 1292]. A Magistrate has discretion to date, sign and pronounce his
predecessor's judgment if a new trial is not demanded [Savarimuthu Pillai (1916) 40 Mad 108].
If a judge dies after writing his judgment but before delivering it in open court, the judgment is not
to be considered as a judgment, but merely as an opinion. If a judge who prepared the judgment
died before it was delivered, another judge cannot deliver it [Surendra Singh v State of U.P. AIR
1954 SC 194]. No expression of opinion by a judge becomes a judgment until it is pronounced.
Language and Contents of Judgment [Sec. 354]
According to Sec. 354, every judgment must comply with the following requirements:
(1) It shall be written in the language of the court (which is determined by the State Government)
[Sec. 354(1)(a)].
(2) It shall contain the points for determination, the decision and the reasons for the decision [Sec.
354(1)(b)].
(3) The particular offence, the relevant section of the Penal Code or other law under which the
accused is punished and the quantum of punishment should be mentioned [Sec. 354(1)(c)]. In case
of acquittal, the judgment must mention the offence of which the accused is acquitted [Sec.
354(1)(d)].
Reasons for Sentence and Special Reasons for Death Sentence [Sec. 354(3)]
Where alternative sentence of death, imprisonment for life/a term of years may be imposed, the
court, while imposing any one of them, should specify its reasons and, in cases of imposition of
death sentence, its special reasons for the imposition [Sec. 354(3)].
The sentence of death may be awarded only for 'special reasons' i.e. only special facts and
circumstances in a given case (will arrant the passing of such sentence in view of the irrevocable
character of the death penalty) e.g. crime has been committed by a professional (hired assassin) or
hardened criminal or it has been committed in a very brutal manner or on a helpless child or a
woman or the like [Balwant Singh v State of Punjab (1976) 1 SCC 425].
Sec. 354(3) casts a duty on the court to give special reasons for awarding sentence of death in a
capital case in order that the High Court is in a position to judge whether the lower court has
exercised its discretion judicially and also to provide material to the authorities concerned at the
time of considering the mercy petition by the condemned accused. "Under the present Code, the
unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital
sentence an exception to be resorted to for reasons to be stated" [Ediga Anamma AIR 1974 SC 799].
In Bachan Singh v State of Punjab (1979) 3 SCC 727, the question was whether Sec. 354(3) is
unconstitutional on the ground that it gives the court unguided and untrammelled discretion and
allow the death penalty to be arbitrarily or freakishly imposed on a person found guilty of murder.
The court came to the conclusion that Parliament has advisedly not restricted the sentencing
discretion, as it is neither possible nor desirable to do so. Criminal cases cannot be categorized,
there being infinite, unpredictable and unforeseen variations. The court, however, cautioned that
for making the choice of punishment or for ascertaining the existence or non-existence of special
reasons, under Sec. 354(3), the court must pay due regard both to the crime and the criminal. The
relative weight to be given to the aggravating and mitigating factors would, of course, depend on
the facts and circumstances of the particular case.
Plea Bargaining
A plea bargain is an agreement between the defence and the prosecutor in which a defendant
pleads guilty or no contest to criminal charges. In exchange, the prosecutor drops some charges,
reduces a charge or recommends that the judge enter a specific sentence that is acceptable to the
defence. As criminal courts become ever more crowded, prosecutors and judges feel increased
pressure to move cases quickly through the system. Trials can take days, weeks or sometimes
months while quality pleas can often be arranged in minutes. Also, the outcome of any given trial is
usually unpredictable- but a plea bargain provides both prosecution and defence with some control
over the result. Further, majority of the criminal cases ultimately end in acquittal. For these reasons
and others, and despite its many critics, plea bargaining is being practiced in many countries.
Driven by these factors now there is an increasing demand to adopt this practice in Indian legal
system as well.
Plea bargaining is a radical concept where an accused can plead guilty and give compensation to the
victim for a milder punishment. There are cases where accused would any day prefer to get
convicted and then be released on probation. This would help the convict later also when the case
goes in appeal to the High Court.
For both the government and the defendant, the decision to enter into (or not enter into) a plea
bargain may be based on the seriousness of the alleged crime, the strength of the evidence in the
case, and the prospects of a guilty verdict at trial.
Plea bargaining, basically meant to reduce the time frame of criminal trials, is prevalent in several
countries, most notably in the United States. It provides for pre-trial negotiations, during which an
accused may plead guilty in exchange for certain concessions by the prosecution. In other words,
under plea bargaining, an accused in a criminal case can plead guilty, pay compensation if required
in exchange for a reduced sentence.
In the US, it accounts for 95 per cent of felony convictions; in fact, it has come to dominate the
judicial system with less than 10 per cent of cases actually coming before a jury for trial. In the US,
the accused pleads guilty for some concessions from the prosecution, primarily a reduced sentence.
Other than the US, it is also used in England, Wales and Australia, where it is permitted to the
limited extent of allowing the accused to plead guilty to some charges in return, for which the
prosecutor will drop the remaining charges. But there is no bargaining over penalty, which is to be
decided by the courts (as in India).
Then there are a host of countries, including India which allow plea bargaining only in certain cases,
typically those involving lesser crimes. For instance, plea bargaining was introduced in Pakistan by
the National Accountability Ordinance in 1999. Under this anti-corruption law, the accused accepts
his guilt and offers to return the proceeds of corruption as determined by the investigators. If the
plea is accepted by the court, the accused stands convicted, but will not be sentenced. The accused
is also disqualified from taking part in elections, holding public office, obtaining any bank loan and
is dismissed from service if he is a government official.
The Law Commission of India in its 142nd Report (1991), suggested to introduce "plea-bargaining"
as is in vogue in many states in the U.S. The Law Commission in its report on Concessional
Treatment of Offenders who on their own initiative choose to plead guilty, without any bargaining,
considered the question of introduction of the concept of concessional treatment for those who
choose to plead guilty by way of plea bargaining.
Further Justice Malimath Committee on Criminal Justice Reforms also welcomed the
recommendation of Law Commission. It favored concessional treatment of offenders who, on their
own volition, plead guilty and has suggested comprehensive changes to the 140-year-old Indian
Penal Code (IPC). Based on the Law Commission Report and Malimath Committee
Report, legislature introduced the Criminal Law (Amendment) Bill, 2003, under which a new
chapter XXIA named as 'Plea Bargaining' (containing Sections 265A to 265L) has been inserted in
the Code of Criminal Procedure.
For Definition parts kindly refer Sec. 265 A to L of Criminal Procedure Code, 1973.
This is how plea bargaining will function in India:
(a) The accused will have to file an application for plea any time before the commencement of the
trial.
(b) The court will consider the application only if it is accompanied by an affidavit stating that the
accused had "voluntarily" opted for plea bargaining and that he had not previously been convicted
on the same charge.
(c) After notice to the prosecutor or complainant, the court will examine the accused in camera to
satisfy itself that the accused has filed the application voluntarily. The court shall ensure that
neither the public prosecutor nor police is present at the time of making the preliminary
examination of the accused.
(d) If the court is satisfied that the application is indeed voluntary. it shall provide time to the
parties concerned to work out a mutually satisfactory disposition which may include compensation
to the victim from the accused.
(e) The court will have to ensure that the process of working out a satisfactory disposition is also
voluntary and allow the accused himself to participate in it.
(f) If a satisfactory disposition has been worked out, the court will prepare a report which will have
to be signed by the judge and all the parties concerned.
(g) While disposing of the case in open court, the court will direct the accused to pay the agreed
compensation to the victim and hear the parties on the quantum of punishment to the accused.
(h) Since the accused is a first-time offender, the court will have the option of imposing a suspended
sentence and releasing the accused on probation despite his conviction.
(i) Alternatively, it may sentence the accused to half the minimum punishment prescribed for the
offence in question. If the offence committed does not fall within the scope of the above, then the
accused may be sentenced to one-fourth of the punishment provided for such offence.
(j) If the Court finds that the application has been made under undue duress or pressure, or that the
applicant after realizing the consequences is not prepared to proceed with the application, the
Court may reject the application. Such an application may be rejected either at the initial stage or
after hearing the public prosecutor and the aggrieved party. If the Court finds that, having regard to
the gravity of the offence or any other circumstances which may be brought to its notice by the
public prosecutor or the aggrieved party, the case is not a fit one for exercise of its power of plea
bargaining, it may reject the application supported by reasons therefor.
(k) The judgment based on plea bargaining shall be final and there will be no statutory right of
appeal against it (except the special leave petition under Article 136 and writ petition under
Articles 226 and 227 of the Constitution).
In India, the court's role is supervisory. It has to make sure that that defendant who is pleading
guilty or pleading no contest is doing so in an intelligent, voluntary manner, so that he knows
exactly what he's doing. The court can either accept or reject any plea bargain. Also, the Code gives
the judge limited freedom in awarding compensation to the victim as the compensation is to be in
accordance with the disposition. The process of plea bargaining can be set in motion suo motu by
the court to ascertain the willingness of the accused and on ascertainment of the willingness of the
accused the court shall require him to make an application accordingly.
It may be a matter of considerable difficulty for defending counsel to decide whether to advise his
client to agree to this course. If he thinks he has a good chance of getting him off altogether (as on a
defence of accident or self-defence), he may fight the case. If the defendant had a bad record, or the
facts are black against him, counsel may think it wiser to attempt the compromise.
Moreover, plea bargaining is not as simple as it may first appear. In effectively negotiating a
criminal plea arrangement, the attorney must have the technical knowledge of every "element" of a
crime or charge, an understanding of the actual or potential evidence that exists or could be
developed, a technical knowledge of "lesser included offences" versus separate counts or crimes,
and a reasonable understanding of sentencing guidelines.
The validity of a plea bargain is dependent upon three essential components:
(1) a knowing waiver of rights;
(2) a voluntary waiver; and
(3) a factual basis to support the charges to which the defendant is pleading guilty.
One important point is a prosecuting attorney has no authority to force a court to accept a plea
agreement entered into by the parties. Prosecutors may only "recommend" to the court the
acceptance of a plea arrangement. It may be noted that the judge does not participate in plea
bargain; prosecutors have discretion whether to offer a plea bargain. The court will usually take
proofs to ensure that the abo three components are satisfied and will then generally accept the
recommendation of the prosecution. Even if a defendant agrees to plead guilty, a judge may decline
to accept the guilty plea and plea agreement if the charge or charges have no factual basis.
When a court accepts a plea agreement, the guilty plea operates as a conviction, and the defendant
cannot be re-tried on the same offence. If the defendant breaches a plea agreement, the prosecution
may re-prosecute the defendant. If the government breaches a plea agreement, the defendant may
seek to withdraw the guilty plea, ask the court to enforce the agreement, or ask the court for a
favourable modification in the sentence.
Justification for Plea Bargaining
Delay in administering law is seen as a hindrance in crime prevention. The crime loses its gravity
with the increase in the gap between the incidence of crime and the punishment of the offender.
Plea bargaining has, thus, been introduced in the realm of the Indian criminal jurisprudence owing
to the result of the prolonged trials and the endless cases that pile up over the years.
The justification for introducing plea bargaining given by the 12th Law Commission in its 142nd
Report are:
(1) It is not just and fair that an accused who feels contrite and wants to make amends or an
accused who is honest and candid enough to plea guilty in the hope that the community will enable
him to pay the penalty for the crime with a degree of compassion and consideration should be
treated on par with an accused who claims to be tried at considerable time-cost and money-cost to
the community.
(2) It is desirable to infuse life in the reformative provisions embodied in Sec. 360, Cr. P.C. and in
the Probation of Offenders Act which remains practically unutilized as of now.
(3) It will help the accused who have to remain as undertrial prisoners awaiting the trial for years
to obtain speedy trial with attendant benefits such as-
(a) end of uncertainty;

(b) saving in litigation. cost;
(c) saving in anxiety cost;
(d) being able to know his fate and to start off fresh life.
(4) It will, without detriment to public interest, reduce the back-breaking burden of the court cases
which have already assumed menacing proportions. Further, it will reduce congestion in jails.
(5) Under the present system, 75% to 90% of the criminal cases if not more, result in acquittals.
COMPOUNDING OF OFFENCES [SEC. 320]
A crime is essentially a wrong done to the society; therefore a compromise between the accused
(wrongdoer) and the individual victim should not be enough to absolve the accused from criminal
responsibility. However, where the offences are essentially of a private nature (relate exclusively to
the personality of the individual) and relatively not quite serious, the Code considers it expedient to
recognize some of them as compoundable offences [see the Table given in Sec. 320(1)] and some
others as compoundable only with the court's permission before which any prosecution for such
offence is pending [see the Table given in Sec. 320(2)]. It follows that all other offences are non-
compoundable i.e. cannot be compounded.
Compounding (or composition) of the offence signifies that the persons against whom the offence
has been committed has received some gratification, though not necessarily of a pecuniary nature,
to act as an inducement to his abstaining from prosecuting the wrong doer [J. John (1922) 45 All
145]. Principle of English law is that composition of an offence is illegal if the offence is one of
public concern but lawful if offence is of private nature and for which damages may be recovered in
civil action. Composition helps to restore amicable relationship between the parties which
otherwise is likely to result in an enduring feud.
The offences (IPC) mentioned in Sec. 320(1) -Table are:
(i) Hurt to religious feelings (Sec. 298).
(ii) Causing hurt (Secs. 323, 334).
(iii) Wrongfully restraining/confining any person (Secs. 341-342).
(iv) Assault or use of criminal force (Secs. 352, 355, 358).
(v) Mischief - damage to a private person (Secs. 426-427).
(vi) Criminal trespass/ House trespass (Sec. 447/448).
(vii) Criminal breach of contract of service (Sec. 491).
(viii) Adultery/ Enticing, etc. a married woman (Sec. 497/498).

(ix) Defamation/ Insult (Secs. 500-502/504).
(x) Criminal intimidation when the offence is punishable with less than 7 years' imprisonment (Sec.
506).
(xi) Act which makes a person believe that he will be an object of divine displeasure (Sec. 508).
The offences (IPC) mentioned in Sec. 320(2) -Table ['graver' than those mentioned in sub-sec.(1)]
are:
(i) Voluntarily causing hurt by dangerous weapons (Sec. 324).
(ii) Voluntarily causing grievous hurt (Secs. 325, 335).
(iii) Causing hurt/grievous hurt by rash/negligent act (Sec. 337/338).
(iv) Wrongfully confining a person for 3 days or more/10 days or more/in secrecy (Secs. 343, 344,
346).
(v) Assault, etc. to woman's modesty (Sec. 354)
(vi) Assault, etc. in wrongfully confining a person (Sec. 357).
(vii) Theft of property not exceeding Rs. 2,000 (Secs. 379, 381).
(viii) Dishonest misappropriation of property (Sec. 403). (ix) Criminal breach of trust in respect of
property not exceeding Rs. 2,000 (Secs. 406-408).
(x) Dishonestly receiving stolen property (Secs. 411, 414).
(xi) Cheating (Secs. 417-420).
(xii) Fraudulent removal/concealment of property to defraud creditors (Secs. 421-424).
(xiii) Mischief by killing animal/injury to work of irrigation (Secs. 428-430).
(xiv) House-trespass to commit an offence (other than theft) punishable with imprisonment (Sec.
451).
(xv) Using a false trade/property mark, etc. (Secs. 482, 483, 486). (xvi) Marrying again during the
lifetime of a husband/wife (Sec. 494).
(xvii) Defamation against the President/Governor, etc. (Sec. 500). (xviii) Uttering words, sounds,
etc. insult the modesty of a woman (Sec. 509).
As regards compounding of offences, the following rules may be kept in mind:

(1) An offence may be compounded by competent persons in cases of minors, lunatics/idiots with
the court's permission. Similarly legal representatives are permitted to make composition in case of
death of the person (entitled to compound) [Sec. 320(4)].
(2) An offence which is compoundable may, with the leave of the court in which it is pending for
trial or on appeal, be compounded [Sec. 320(5)]. When an appeal (or revision) is pending, the
appellate court alone can allow the compounding.
(3) The court of revision (High Court/Sessions Court) may allow any person to compound an
offence, if such person is competent to compound it [Sec. 320(6)].
(4) Compounding is prohibited in cases where, an account of previous conviction, the accused is
liable to an enhanced punishment or to a punishment of a different kind [Sec. 320(7)].
(5) The compounding of an offence under Sec. 320 has the same effect as an acquittal of the accused
[Sec. 320(8)].
(6) No offence shall be compounded except as provided by this section [Sec. 320(9)].
PROBATION
Release on Probation of Good Conduct or After Admonition [Secs. 360-361]
In every criminal trial, when the court finds the accused guilty, it has to punish the accused in
accordance with law. However, having regard to the age, character, antecedents or physical/mental
condition of the offender, and to the circumstances in which the offence was committed, the court
may instead of sentencing him to any punishment, release him after admonition or on probation of
good conduct under Sec. 360 of the Code (or under the provisions of the Probation of Offenders Act,
1958).
The offender may be released on his entering into a bond, with or without sureties. The period
during which he can be bound over to keep the peace and be of good behaviour is one not
exceeding three years. During the period, he is liable to be called upon to appear in court to receive
a sentence.
A release on probation is permissible only if the following conditions are satisfied:
(a) There is no previous conviction (under any law) proved against the offender.
(b) The offender is under 21 or woman (of any age), convicted of an offence not punishable with
death or life imprisonment.
(c) The offender is above 21, convicted of an offence (under any law) punishable with fine only or
imprisonment for a term of 7 years or less [Sec. 360(1)].
An order may be made by appellate court, High Court or Sessions Court in revision. No Magistrate
of a second class, unless he is specially empowered, can release an offender on probation; however,
if he considers that the offender should be so released, he may transfer the case to a Magistrate of
the first class who may thereupon take such action as is appropriate [Sec. 360(1), proviso & (2)]. A
second-class Magistrate, however, has power under Sec. 360(3).
Having regard to the age, character, antecedents or physical/mental condition of the offender and
to the trivial nature of the offence or any extenuating circumstances under which the offence was
committed, the court may, after convicting the accused person, release him after due admonition if
the following conditions are satisfied:
(a) There is no previous conviction proved against the offender.
(b) The offence of which the accused is convicted is either theft, theft in a building, dishonest
misappropriation, cheating or any offence under the I.P.C. punishable with not more than 2 years'
imprisonment or with fine only [Sec. 360(3)].
Sec. 360 is a piece of beneficent legislation, and enables the court to release the accused on
probation of good conduct. The object is to avoid sending the "first offender" to prison for an
offence, which is not of a serious character and thereby running the risk of turning him into a
regular criminal. In recent times, there has been an increasing emphasis on the reformation and
rehabilitation of the offender as a useful and self-reliant member of society without subjecting him
to the deleterious effects of jail life. It is only in the case of hardened criminals that a prolonged
confinement be needed.
However, even if all the conditions of Sec. 360 are fulfilled, the accused cannot claim the benefit of
this section as a matter of right. Misplaced leniency and sympathy for the accused are matters
which should never be allowed to influence the court's mind; otherwise the very object for which
punishments are provided would be defeated [N.M. Parthasarthy v State AIR 1992 SC 988]. The
expression "instead of sentencing him" indicates that the order of probation can be passed after
conviction, but before awarding the sentence and in substitution of it. If the sentence is once
awarded, no order for probation can be passed thereafter [Misri Lal (1918) 17 ALJR 426).
Before directing the release of an offender, the court must be satisfied that such a person or his
surety (if any) has a fixed place of residence or a regular occupation in the place in which the court
is situated or in which the offender is likely to live during the relevant period. Later, if the court is
satisfied that the offender has failed to observe any of the conditions of his recognizance, it may
issue an arrest-warrant. If a person is apprehended on such a warrant, he is to be brought before
the court, which may either remand him in custody (until the case is heard) or admit him to bail
(with a sufficient surety), and after hearing the case it may pass the necessary sentence [Sec.
360(7)-(9)].
The discretion given to the court in passing "post-conviction" orders (under Sec. 360) has been
restricted to some extent in favour of young offenders below 21 years of age. It is not intended that
this section should be applied to experienced men of the world who deliberately flout the law and
commit offences [Ibrahim v State, 1974 CrLJ 993 (All)]. The Probation of Offenders Act, 1958, also
contains a provision (Sec. 6) similar to Sec. 360 of the Code. It may be noted that Sec. 360 makes it
quite clear that it shall not affect the provisions of the Probation Act, Children Act, 1960, or any
other law providing for the treatment, rehabilitation, etc. of youthful offenders [Sec. 360(10)].
Where benefit of Sec. 360 ought to have been given but not given the sentence is set aside [Keshav
Sitaram Sali AIR 1983 SC 291]. The High Court or the Sessions Court has power, on appeal or in
revision, to set aside the order of the Magistrate under this section and in lieu thereof to pass
sentence on the offender according to law, provided that it cannot inflict a greater punishment than
might have been inflicted by the court by which the offender was convicted [Sec. 360(5)].
Some of the illustrative cases, under Sec. 360, are:
(i) A boy of 16-17 years convicted under Sec. 323/324, IPC was given benefit of Probation of
Offenders Act and released by the High Court as he was first offender and the occurrence took place
at the spur of the moment [Rajesh alias Pappu v State of Haryana, 1996 CrLJ 376 (P&H)].
(ii) An accused, convicted under Sec. 165, IPC was not entitled to be released on probation of good
conduct as the offence was serious. When accused persons are convicted under Sec. 323, IPC, it
would meet the ends of justice if they are not sent to jail but are released on probation [Om Prakash
v State of M.P. AIR 1982 SC 783].
(iii) Where death of a girl aged 10 was caused by the accused through rash and negligent driving,
and there was no mitigating circumstance, the benefit of probation could not be extended to the
accused [Somabhai v State, 1989 CrLJ 1945 (Guj)].
(iv) Where the accused, a student, assaulted the deceased by fists and kicks in a sudden quarrel, his
conviction under Sec. 304, Part II, IPC was changed into conviction under Sec. 325, IPC and he
released on probation [Rajesh v State, 1993 CrLJ 208 (Bom)].
MCD v STATE OF DELHI [(2005) 4 SCC 605]
[The Court must take into consideration the probation officers report before coming to any
conclusion, however, the Court is not bound by this report].
In this case, the question before the Supreme Court was whether the High Court was correct in
extending the benefit of the Probation of Offenders Act, 1958, to the accused-respondent without
calling for a report from the authorities relating to the conduct of the respondent as per Sec. 4 of the
Act.
The Apex Court observed: Section 4 of the Probation of Offenders Act applies to all kinds of
offenders whether under or above 21 years of age. This section is intended to attempt possible
reformation of an offender instead of inflicting on him the normal punishment of his crime. The
only limitation imposed by Section 6 is that in the first instance an offender under 21 years of age,
will not be sentenced to imprisonment. While extending benefit of this case, the discretion of the
court has to be exercised having regard to the circumstances in which the crime was committed, the
age, character and antecedents of the offender. Such exercise of discretion needs a sense of
responsibility. The offender can only be released on probation of good conduct under this section
when the court forms an opinion, having considered the circumstances of the case, the nature of the
offence and the character of the offender, that in a particular case, the offender should be released
on probation of good conduct. The section itself is clear that before applying the section, the
Magistrate should carefully take into consideration the attendant circumstances... In the present
case, the respondent is a previous convict and he hide this fact before the court. Thus, by reason of
such conduct, the respondent has disentitled himself from getting any relief or assistance from this
court.
The Court further observed: The court is bound to call for at report as per Sec. 4 of the Probation of
Offenders Act but the High Court has failed to do so although the court is not bound by the report of
the probation officer but it must call for such a report before coming to its conclusion. The word
"shall" in Sec. 4(2) is mandatory and the consideration of the report is a condition precedent to the
release of the accused and a release without such a report would, therefore, be illegal.
In R. Mahalingam v G Padmavathi [(1979) Cr.L.J. (NOC) 20 (Mad.)], the court observed: If any report
is filed by the probation officer, the court is bound to consider it. The words "if any" do not mean
that the court need not call for a report from the probation officer. The words 'if any' would only
cover a case where notwithstanding such requisition, the probation officer for one reason or other
has not submitted a report. Before deciding to act under Sec. 4(1), it is mandatory on the court's
part to call for a report and if such a report is received, it is mandatory on the part of the court to
consider the report. But if for one reason or the other such a report is not forthcoming, the court
has to decide the matter on other materials available to it. The Apex Court, in the present case, thus,
set aside the High Court's judgment.
Appeals Reference Revision Inherent Powers
Appeals [Sec. 372]
The provisions relating to criminal appeals are contained in Secs. 372-394 of the Code.
The word "appeal" means the right of carrying a particular case from an inferior to a superior court
with a view to ascertain whether the judgment is sustainable. An appeal is a creature of statute and
only exists where expressly given. An appeal implies additional time and expense in the final
disposal of the case. Therefore, though the right of appeal is integral to fair procedure, natural
justice and normative universality, the Code, as a policy, prefers to allow the right in the specified
circumstances only.
According to Sec. 372 of the Code, "no appeal shall lie from any judgment/order of a criminal court
except as provided by the Code or by any other law." Sec. 372 has been amended in 2008:
Amendment of Sec. 372 (Victim's right to prefer an appeal against any adverse order passed by the
trial Court)
In Sec. 372, the following proviso shall be inserted, namely:
"Provided that the victim shall have a right to prefer an appeal against any order passed by the
Court acquitting the accused or convicting for a lesser offence or imposing inadequate
compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the
order of conviction of such Court."
Appeals from Convictions [Sec. 374]

Sec. 374 lays down the forums for filing appeals by the accused against the order of conviction:
(1) If a trial is held by High Court in its extraordinary original criminal jurisdiction, an appeal would
lie to the Supreme Court.
(2) If a trial is held by a Sessions Judge/Additional Sessions Judge or by any other court in which a
sentence of imprisonment of more than 7 years has been passed, an appeal would lie to the High
Court.
(3) If a trial is held by a Metropolitan Magistrate/Assistant Sessions Judge or Magistrate of the first
or second class [except cases falling under (2)], or in cases falling under Secs. 325 and 360, an
appeal will lie to the Sessions Court.
A trial was held by an Asst. Sessions Judge; after he had recorded the evidence in the court and
heard the arguments, but before writing and delivering his judgment, he was invested with the
powers of an Addl. Sessions Judge, it was held that an appeal from the conviction lay to the Sessions
Judge and not to the High Court as the accused had been convicted "on a trial held by" an Asst.
Sessions Judge [Bakshi Ram (1938) All 157]. In a case, the High Court in an appeal convicted the
accused and sent back the case to the trial court with a direction to pass the sentence in accordance
with the law. The trial Magistrate imposed a sentence of rigorous imprisonment. Appeal against
such sentence was held to be not maintainable before the Sessions Court [C. Gopinathan, 1991 CrLJ
778 (Ker)].
No Appeal when Accused Pleads Guilty [Sec. 375]
Where an accused person has pleaded guilty and has been convicted on such plea, there shall be no
appeal (a) if the conviction is by a High Court, or (b) if the conviction is by a Sessions Court,
Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality
of the sentence [Sec. 375].
When a person is convicted by any court on the basis of his own plea of guilty, he cannot and should
not have any grouse against the conviction and hence is not entitled to appeal from such conviction.
However, the accused person can plead that his conviction is illegal. Plea of guilty, obtained by
trickery, is not a plea of guilty, and the accused is entitled to satisfy the court that there was in fact
no plea of guilty [Prafulla Kumar (1943) 1 Cal 540]. A person, by pleading guilty, does not commit
himself to accept the punishment that would be passed by the court. Therefore, he is not denied the
right to challenge the extent (or severity) of the sentence.
However, this limited right of appeal is not allowed when the sentence is passed by a High Court.
No appeal In Petty Cases [Sec. 376]
According to Sec. 376, there shall be no appeal by a convicted person in the following cases:
(a) where the only sentence is one of imprisonment up to 6 months, or of fine up to Rs. 1000, or of
both, and is passed by a High Court,
(b) where the only sentence is one of imprisonment up to 3 months, or of fine up to Rs. 200, or of
both, and is passed by a Sessions Court/Metropolitan Magistrate;
(c) where the only sentence is one of fine up to Rs. 100, and is passed by a First Class Magistrate;
(d) where the only sentence is one of fine up to Rs. 200, and is passed in a summary trial by a CJM, a
Metropolitan Magistrate, or a First Class Magistrate specially empowered by the High Court.
REFERENCE AND REVISION
Reference to High Court [Secs. 395]
Every court subordinate to the High Court is required to make a reference to the High Court if the
following conditions are satisfied:
(1) The court is satisfied that a case pending before it involves a question as to the validity of any
Act/Ordinance/Regulation or any provision contained in such law, and the determination of such
question is necessary for the disposal of the case before it.
(ii) The court is of the opinion that the law/legal provision is invalid or inoperative but has not been
so declared by the High Court to which that court is subordinate or by the Supreme Court [Sec.
395(1)].
While making such a reference to the High Court, the subordinate court shall state a case setting out
its opinion and the reasons therefor. A mere plea raised by a party challenging the validity of the
law is not sufficient and what is required is the satisfaction of the court that a real and
substantial question regarding the validity of the law is involved [M. Rajaram Reddi, In re AIR 1952
Mad 578].
A Court of Session or a Metropolitan Magistrate may refer for the decision of the High Court any
question of law arising in the hearing of a case pending before such court or Magistrate [Sec.
395(2)]. Such a reference can be made only on a question of law and not on a question of fact [Molla
Fuzla Karim (1905) 33 Cal 193]. The question referred to must have arisen in the hearing of the
case and the High Court will not decide hypothetical questions of law however interesting or
important they may be [A.S. Krishna, In re AIR 1954 Mad 993].
The following references have not been allowed under Sec. 395:
(1) A reference of a question, whether inordinate delay in prosecution amounts to violation of

fundamental right under Art. 21 of the Constitution [State v B.B. Parekh, 1992 CrLJ 1222 (Kamt)].
(2) Reference of points of law settled by decisions of the High Court, where the Magistrate doubts
the correctness of those decisions [State v Ram Chander Agarwala AIR 1979 SC 87]. Similarly, the
subordinate court cannot make reference on the ground that a different view of law was taken by
some other High Court. It must obey the law laid down by the High Court to which that court is
subordinate [Qazi Md. Hanif, 1990 CrLJ 171 (Bom)].
A Sessions Court is competent to make reference on a question of law under its original as well as
appellate jurisdiction. Sec. 395(3) lays down that when any court makes a reference to the High
Court, pending the decision of the High Court, such court may either commit the accused to jail or
release him on bail.
When a question is referred to the High Court, the High Court shall pass such order as it thinks fit
and shall cause a copy of such order to be sent to the court by which the reference was made, which
shall dispose of the case conformably to the said order.
Revision
In cases where no appeal has been provided by law or in cases where the remedy of appeal has for
any reason failed to secure fair justice, the Code provides for another kind of review procedure, viz.
'revision'. Very wide discretionary powers have been conferred on the Sessions Court and the High
Court for that purpose. While making provisions for extensive powers of revision for ensuring
correctness, legality and propriety of the decisions of criminal courts, the Code has also taken care
to see that this review procedure does not make the judicial process unduly cumbersome,
expensive or dilatory.
"The revisional powers are supervisory in nature under which a court of revision is to see that
justice is done in accordance with the recognized rules of criminal jurisprudence and the
subordinate courts do not exceed their jurisdiction or abuse their powers and there are no
unfettered powers for re-appraisal of evidence" [Om Pratap Singh v State, 1995 CrLJ 3887 (All)].
When there was acquittal of the accused who was charged on a police report and the State did not
file an appeal against it, the informant, since he had no right of appeal against the order, was held to
be competent to apply for a revision [Niranjan Kumar v Randhir Roy, 1990 CrLJ 683 (Cal)].
The revisional jurisdiction is derived from three sources: (i) Secs. 397 401 of the Code; (ii) Art. 227
of the Constitution of India, and (iii) the power to issue the writ of certiorari. Under Art. 227 of the
Constitution, the High Court has supervisory jurisdiction viz. superintendence over the inferior
courts; an error of law apparent on the face of the record can be corrected by it exercising this
power.
Power to Call for and Examine the Record of Lower Court [Sec. 397]
The High Court or a Sessions Court may call for and examine the record of any proceeding before
any inferior criminal court situate within its local jurisdiction for the purpose of satisfying itself as
to the (i) correctness, legality or propriety of any finding/order/sentence recorded or passed, and
(ii) regularity of any proceeding of such inferior court. When calling for such record, the High
Court/Sessions Court may direct that the execution of any sentence/order be suspended, and if the
accused is in confinement, that he be released on bail on his own bond pending the examination of
the record. [Sec. 397(1)].
It may be noted that a revisional authority can take up the matter suo motu. However, as the power
is discretionary, whether it will interfere in a case or not will depend upon its facts. Revision cannot
be dismissed by the High Court on the technical ground of limitation. When any revision in High
Court is dismissed on the ground of limitation, the High Court can exercise power of revision so
motu under Sec. 397 [Municipal Corporation of Delhi v. Girdhari Lal Sapru AIR 1981 SC 1169]. The
High Court does not lightly interfere with the taking of cognizance of an offence. An order
permitting withdrawal from prosecution/granting pardon is open to revision.
The word 'proceeding' would include a pending case. The revisional court possesses the power to
interfere at any stage of the case, especially when it is brought to its notice that a person has been
subjected to harassment of an illegal prosecution. The High Court will exercise its power where
there is a material error/defect in law or procedure, misconception/ misreading of evidence, failure
to exercise or wrong exercise of jurisdiction, or where the facts admitted or proved do not disclose
any offence [Sunil Kumar v Ajit Kumar AIR 1969 Cal 492]. Thus, cases for such interference must be
of an exceptional nature. When, therefore, the facts float on the surface and there is not even a
scintilla of suspicion of criminal liability as against the accused, the High Court would interfere
[Hakim Abdul Wali (1933) 9 Luck 61].
The words "inferior criminal court" mean judicially inferior to the High Court/Sessions Judge. All
Magistrates, whether executive or judicial, and whether exercising original or appellate jurisdiction
shall be deemed to be inferior to the Sessions Judge [Explanation, Sec. 397(1)]. A District Magistrate
is inferior to the Sessions Judge.
No Revision of Interlocutory Orders
The powers of revision conferred by Sec. 397(1) are not to be exercised in relation to any
interlocutory order passed in any appeal, inquiry, trial or other proceeding [Sec. 397(2)]. An
'interlocutory order' denotes order of a purely interim/temporary nature which do not decides or
touch the important rights or liabilities of the parties. It is an intermediate order made during the
preliminary stages of an inquiry/trial.
If revision applications are allowed against such orders, the hearing of the case may be stayed for a
long period. Thus, the purpose of this bar is to bring about final disposal of the cases expeditiously,
and, to safeguard the interest of the accused [Amar Nath AIR 1977 SC 2185]. The expression
'interlocutory order' has to be given a liberal construction in favour of the accused in order to
ensure fairness of trial [K.C. Shukla v State (CBI) AIR 1980 SC 962]. The bar is not however likely to
prejudice any party aggrieved by the interlocutory order as such party can always challenge it in
due course if the final order goes against it.
The following orders have been held to be 'interlocutory orders', and are, thus, not open to revision:
Order refusing application for summoning a witness; Order summoning an accused; Order of
Magistrate issuing process; Order of adjournment; Order calling for reports and such other steps in
the aid of pending proceedings; Show-cause order requiring execution of bond for keeping the
peace; etc. Orders passed by the trial court refusing to call documents and rejecting the application
under Sec. 311 are interlocutory orders and as such, the revision against those orders are clearly
barred under Sec. 397(2) [Sethuraman v Rajamanickam, 2009 (77) AIC 165 (SC)].
The following orders have been held not to be interlocutory orders, and are, thus, open to revision:
(i) An order granting interim maintenance.
(ii) An order staying a criminal proceeding.
(iii) An order for the taking of cognizance of an offence.
(iv) An order rejecting the plea of the accused on a point which when accepted, will conclude the
particular proceeding.
(v) An order rejecting application challenging jurisdiction of court to proceed with the trial.
INHERENT POWERS OF HIGH COURT [SEC. 482]

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any court or otherwise to secure the ends of justice [Sec. 482].
Sec. 482 (which resembles Sec. 151 of the Civil Code) does not confer any new or increased powers
on the High Court. It only provides that those powers which the court already inherently possessed
are preserved; the section is inserted lest it should be considered that the only powers possessed
by the court are those expressly conferred by the Code and that no inherent power had survived
after the passing of the Code [Mohammad Naim AIR 1964 SC 703].
In Madhu Limaye v State of Maharashtra (AIR 1978 SC 47), the Supreme Court has held that the
following principles would govern the exercise of the inherent jurisdiction of a High Court:
(i) the power is not to be resorted to if there is a specific provision in the Code for the redress of the
grievance of the aggrieved party;
(ii) it should be exercised very sparingly to prevent abuse of the process of court or otherwise to
secure the ends of justice;
(iii) it should not be exercised as against the express bar of the law engrafted in any other provision
of the Code.)
Instances of the Exercise of Inherent Powers
The following are some categories of cases where the inherent jurisdiction of the High Court ought
to be exercised:
(i) To remedy a grave and clear injustice.
(ii) To entertain applications which are not contemplated by the Code.
(iii) When a clear mandatory provision of law is overlooked [Motilal (1947) All 730].
(iv) To exempt an accused from appearing in court [Madhaorao (1949) Nag 451].
(v) To make an order that an appeal may be reheard in a proper case where a party who is entitled
to be heard has not been heard without there being any fault on his part.
(vi) To quash a proceeding, where the allegations in the complaint did not make out the alleged
offences or where there was a legal bar against the commencement/ continuation of the
proceeding. It has been held that to prevent abuse of the process of the court, the High Court in
exercise of its inherent powers could quash the proceedings but there would be justification only
when the complaint did not disclose any offence or was frivolous, vexatious or oppressive
[Dhanlakshmi v R. Prasana Kumar AIR 1990 SC 494].
(vii) To quash a proceeding, where there was no legal evidence adduced in support of the charge or
where the evidence clearly failed to prove the charge. However, the High Court cannot embark
upon an enquiry as to whether the evidence in the case is reliable or not [R. P. Kapur AIR 1960 SC
866]. While exercising jurisdiction under Sec. 482, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable
apprehension of it accusation would not be sustained. That is the function of the trial judge/court
[State of Andhra Pradesh v Gourishetty Mahesh (2010) 6 SCALE 767].
(viii) To quash an FIR is a step which is permitted only in extremely rare cases (e.g. when the
information in the complaint is bereft of even the basic facts) [Rajesh Bajaj v NCT, Delhi, 1999 CrLJ
1833 (SC)).
In the following cases, the inherent powers cannot be invoked:
(i) To quash the proceedings in police investigation consequent upon a F.I.R. made to the police in a
cognizable case; to interfere with the statutory rights of the police to investigate a cognizable case
[S. N. Basak AIR 1963 SC 447].
(ii) To quash an investigation just because the FIR does not disclose any offence when investigation
could be carried on the basis of other materials.
(iii) To embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations
made in the FIR/complaint [State of Haryana v Bhajan Lal, 1992 AIR SCW 237; Rupan Deol Bajaj v
K.P.S. Gill AIR 1996 SC 309]. In exercising jurisdiction under Sec. 482, the High Court would not
embark upon an enquiry whether the allegations in the complaint are likely to be established by
evidence or not [State of Bihar v Murad Ali Khan AIR 1989 SC 1].
(iv) Bail cannot be granted in exercise of the inherent power [Ram Niwas v State, 1990 CrLJ 460
(All)]. Sec. 482 is not controlled by Secs. 436, 437 and 439.
(v) Inherent jurisdiction can be invoked only against final orders and not against interlocutory
orders. Ends of justice would be better served if valuable time of the court is spent in hearing those
appeals rather than entertaining petitions under Sec. 482 at an interlocutory stage which after filed
with some oblique motive in order to circumvent the prescribed procedure, or to lelay the trial
which enable to win over the witness or may disinterested in giving evidence, ultimately resulting
in miscarriage of justice [Hamida v Rashid (2008) 1 SCC 474].
(vi) To order stay of arrest of accused during investigation [Ashok K. Singh v State, 1993 CrLJ 2083
(SC)].
DREAM.
BELIEVE.
DO.
REPEAT.

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CRIMINAL

No part of this publication may be reproduced, distributed,

The Code of Criminal Procedure (Amendment) Act, 2008

The Criminal Law (Amendment) Act, 2013

Classes of Criminal Courts

(I) Courts of Session;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

(i) Judicial Proceeding

The following have been held to be judicial proceedings:

(i) Maintenance proceedings.

(ii) An inquiry by a Magistrate, before issuing an order under Sec. 144.

(iii) Proceedings in execution of a decree.

(iv) A preliminary inquiry under Sec. 340.

The following have been held not to be judicial proceedings:

(i) An examination by a police officer under Sec. 161.

(ii) An order of the Government sanctioning a prosecution under Secs. 196-197.

(iv) Departmental inquiries.

Initiation of Criminal Cases

1. All serious offences are considered as cognizable.

3. Some of the examples of 'cognizable' offences are:

• Waging war against the Government;

3. Some of the examples of 'non cognizable' offences are:

• Absconding to avoid service of summons;

4. A police officer has no authority to arrest without warrant.

Distinction between Complaint and First Information Report (FIR)

1. In complaint, the allegation is made orally or in writing to a Magistrate.

2. A complaint may relate to a cognizable or non-cognizable offence.

3. A Magistrate takes cognizance of an offence on a complaint made to him.

4. A complaint generally does not include the report of a police officer.

F.I.R. (First Information Report)

3. A Magistrate cannot take cognizance of an offence on first information.

4. FIR may be given by a police officer.

According to Sec. 154:

(1) If the information is given in writing, or

Provided further that:

(b) the recording of such information shall be videographed;

Sec. 154 has a three-fold object, namely:

(iii) To safeguard the accused against subsequent variations or additions.

When a Statement Amounts to F.I.R.?

The following points may be noted about a F.I.R.:

(1) It should be information of fact disclosing the commission of a cognizable offence.

The following do not come within the purview of a F.I.R., namely:

(1) A statement given to the police after investigation have commenced.

(2) A statement made by a witness during investigation.

(5) A complaint made orally or in writing to a Magistrate.

LALITA KUMARI V GOVT. OF U.P. [2008 (11) SCALE 157]

LALITA KUMARI V GOVT. OF U.P. [2013 (13) SCALE 559]

Information in respect of Non – Cognizable offences (Sec. 155)

STATE OF ORISSA v SHARAT CHANDRA SAHU [(1996) 6 SCC 435]

Investigation of Cognizable Case (Sec. 156)

Order of Investigation by Magistrate [Sec. 156(3)

Whenever a Magistrate directs an investigation on a complaint the police has to register a

When the Police Itself is a Complainant

([Whenever a Magistrate directs an investigation on a complaint the police has to register a

SAKIRI VASU V STATE OF U.P. [(2008) 2 SCC 409]

Police officer's power to require Attendance of Witnesses (Sec. 160)

(I) the order must be in writing.

Recording of Statements [Sec. 161(3)]