1 Code of Criminal Procedure, 1973

Introduction
The Code of Criminal Procedure, 1973 contains 484 Sections in 37 Chapters and 2 Schedules. This
Code is the main legislation on procedure for administration of substantive criminal law in India. It is
a procedural law that provides for the procedure for punishment of offenders under criminal law. The
Act provides for ‘what process to be followed in every investigation, inquiry or trial.’ Nothing contained in
this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for
the time being in force, or any special jurisdiction or power conferred, or any special form of procedure
prescribed, by any other law for the time being in force.

History
In 1882, the first Code of Criminal Procedure was introduced.
In 1898, the Code of Criminal Procedure, 1898 was introduced which supplanted the earlier Code of
1882. This Code was amended various times.
Further in 1973, the Code of Criminal Procedure, 1973 was passed by both houses of Parliament, passed
by the President on 25 January 1974. This Act came into force on 1 April 1974. It appeared in the Statute
book as THE CODE OF CRIMINAL PROCEDURE, 1973 (Act 2 of 1974). (Came into force on 1st April, 1974).

Objectives and Applicability of the Act

The Code of Criminal Procedure, 1973 extends to the whole of India.
Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall
not apply—(a) To the State of Nagaland, (b) to the tribal areas, but the concerned State Government
may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland
or such tribal areas, as the case may be, with such supplemental, incidental or consequential
modifications, as may be specified in the notification.
Explanation.—In this section, “tribal areas” means the territories which immediately before the 21 day
of January 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth
Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.
Trial of offences under the Indian Penal Code and other laws—(1) All offences under the Indian Penal
Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the
provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with
according to the same provisions, but subject to any enactment for the time being in force regulating
the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Savings Clause—Nothing contained in this Code shall, in the absence of a specific provision to the
contrary, affect any special or local law for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other law for the time being in force.
The Code of Criminal Procedure was introduced or enacted with the objectives:
1. The Act provides for the machinery to detect the criminals.
2. The Act provides for the procedure to arrest the suspect as well as criminals.

Code of Criminal Procedure, 1973 1

 3. The Act provides for the special provisions in special cases. Such as registration of FIR in rape
cases, in case of investigation with aged or minor or with women etc.
4. The Act provides for the mechanism to collect the evidence and to interrogate.
5. The Act provides for the manner of writing a complaint, charge etc.
6. The Act provides for the provisions for the right to appeal, right to maintenance etc.
The Code of Criminal Procedure was enacted, aiming at providing safeguards against harms and
violations.

Statement of Objects and Reasons

1. The law relating to criminal procedure applicable to all criminal proceedings in India (except those
in the States of Jammu and Kashmir and Nagaland the Tribal Areas in Assam) is contained in
the Code of Criminal Procedure, 1898. The Code has been amended from time to time by various
Acts of the Central and State Legislatures. The more important of these were the amendments
brought about by Central legislation in 1923 and 1955. The amendments of 1955 were extensive
and were intended to simplify procedures and speed up trials as far as possible. In addition, local
amendments were made by State Legislatures of which the most important were those made
to bring about separation of the Judiciary from the Executive. Apart from these amendments,
the provisions of the Code of 1898 have remained practically unchanged through these decades
and no attempt was made to have a comprehensive revision of this old Code till the Central Law
Commission was set up in 1955.
2. The first Law Commission presented its Report (the Fourteenth Report) on the Reform of Judicial
Administration, both civil and criminal in 1958; it was not concerned with detailed scrutiny of the
provisions of the Code of Criminal Procedure, but it did make some recommendations in regard
to the law of criminal procedure, some of which required amendments to the Code. A systematic
examination of the Code was subsequently undertaken by the Law Commission not only for giving
concrete form to the recommendations made in the Fourteenth Report but also with the object of
attempting a general revision. The main task of the Commission was to suggest measures to remove
anomalies and ambiguities brought to light by conflicting decisions of the High Courts or otherwise
to consider local variations with a view to securing and maintaining uniformity, to consolidate laws
wherever possible and to suggest improvements where necessary. Suggestions for improvements
received from various sources were considered by the Commission. A comprehensive report for
the revision of the Code, namely, the Forty-first Report, was presented by the Law Commission
in September, 1969. This report took into consideration the recommendations made in the earlier
reports of the Commission dealing with specific matters, namely, the Fourteenth, Twenty-fifth,
Thirty-second, Thirty-third, Thirty-sixth, Thirty-seventh, and Fortieth Reports.
3. The recommendations of the Commission were examined carefully by the Government, keeping in
view among others, the following basic considerations:—
a. an accused person should get a fair trial in accordance with the accepted principles of natural
justice;
b. every effort should be made to avoid delay in investigation and trial which is harmful not only
to the individuals involved but also to society; and
c. The procedure should not be complicated and should, to the utmost extent possible, ensure
fair deal to the poorer sections of the community.

2 Code of Criminal Procedure, 1973

 The occasion has been availed of to consider and adopt where appropriate suggestions received
from other quarters, based on practical experience of investigation and the working of criminal
Courts.
4. One of the main recommendations of the Commission is to provide for the separation of the
Judiciary from the Executive on an all India basis in order to achieve uniformity in this matter. To
secure this, the Bill seeks to provide for a new set up of criminal Courts. In addition to ensuring fair
deal to the accused, separation as provided for in the Bill would ensure improvement in the quality
and speed of disposal as all Judicial Magistrates would be legally qualified and trained persons
working under close supervision of the High Court.
5. Some of the more important changes proposed to be made with a view to speeding up the disposal
of criminal cases are—
a. the preliminary inquiry which precedes the trial by a Court of Session, otherwise known as
committal proceedings, is being abolished as it does not serve any useful purpose and has
been the cause of considerable delay in the trial of offences;
b. provision is being made to enable adoption of the summons procedure for the trial of offences
punishable with imprisonment up to two years instead of up to one year as at present; this
would enable a larger number of cases being disposed of expeditiously;
c. the scope of summary trials is being widened by including offences punishable with
imprisonment up to one year instead of six months as at present; summons procedure will be
adopted for all summary trials;
d. the powers of revision against interlocutory orders are being taken away, as it has been found
to be one of the main contributing factors in the delay of disposal of criminal cases;
e. the provision for compulsory stoppage of proceedings by a subordinate Court on the mere
intimation from a party of his intention to move a higher Court for transfer of the case is being
omitted and a further provision is being made to the effect that the Court hearing the transfer
application shall not stay proceedings unless it is necessary to do so in the interest of justice;
f. when adjournments are granted at the instance of either party, the Court is being empowered
to order costs to be paid by the party obtaining the adjournments to the other party;
g. provision is being made for the service of summons by registered post in certain cases;
h. in petty cases, the accused is being enabled to plead guilty by post and to remit the fine
specified in the summons;
i. if a Court of appeal or revision discovers that any error, omission or irregularity in respect of a
charge has occasioned failure of justice it need not necessarily order retrial;
j. The facility of part-heard cases being continued by successors-in-office now available in
respect of Courts of Magistrates is being extended to Courts of Session.
In addition to the above specific measures, the Commission’s recommendations which are intended
to resolve conflicts of decisions on various matters or to remove ambiguities have been given
effect to and these provisions may, by themselves, help in reducing the time taken in litigation.
6. Some of the more important changes intended to provide relief to the proper sections of the
community are—
a. provisions have been made for giving legal aid to an indigent accused in cases triable by a
Court of Session; the State Government may extend this facility to other categories of cases;

Code of Criminal Procedure, 1973 3

 b. the Court has been empowered to order payment of compensation by the accused to the
victims of crimes, to a larger extent than is now permissible under the Code;
c. when a Commission is issued for the examination of a witness for the prosecution, the cost
incurred by the defence including pleader’s fees may be ordered to be paid by the prosecution;
d. the accused will be given an opportunity to make representation against the punishment
before it is imposed.
In addition to these specific provisions, the steps taken to reduce delays would themselves
automatically benefit the poorer sections, as it is they who particularly suffer by the prolongation
of criminal cases.
7. The notes on clauses explain the more important provisions of the Bill.

List of Amending Acts

1. The Repealing and Amending Act, 1974 (Act 56 of 1974)
2. The Code of Criminal Procedure (Amendment) Act, 1978 (Act 45 of 1978)
3. The Code of Criminal Procedure (Amendment) Act, 1980 (Act 63 of 1980)
4. The Criminal Law (Amendment) Act, 1983 (Act 43 of 1983)
5. The Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983)
6. The Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986)
7. The Code of Criminal Procedure (Amendment) Act, 1988 (Act 32 of 1988)
8. The Code of Criminal Procedure (Amendment) Act, 1990 (Act 10 of 1990)
9. The Code of Criminal Procedure (Amendment) Act, 1991 (Act 43 of 1991)
10. The Code of Criminal Procedure (Amendment) Act, 1993 (Act 40 of 1993)
11. The Criminal Law (Amendment) Act, 1993 (Act 42 of 1993)
12. The Code of Criminal Procedure (Amendment) Act, 2001 (Act 50 of 2001)
13. The Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005)
14. The Criminal Law (Amendment) Act, 2005 (Act 2 of 2006)
15. The Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009)
16. The Code of Criminal Procedure (Amendment) Act, 2010 (Act 41 of 2010)
17. The Criminal Law (Amendment) Act, 2013 (Act 13 of 2013)
18. The Lokpal and Lokayuktas Act, 2013 (Act 1 of 2014)
19. The Criminal Law (Amendment) Act, 2018 (Act 22 of 2018)
20. The Jammu and Kashmir Reorganisation Act, 2019 (Act 34 of 2019)

Points to Remember !
y The subject of Criminal Procedure falls in Concurrent List of the Indian Constitution.
y The Code of Criminal Procedure is divided into 37 Chapters and 484 Sections.
y The Code of Criminal Procedure can be amended by Parliament or any state legislature.
y The Code of Criminal Procedure is constitutionally valid.
y The Code of Criminal Procedure is the main legislation on procedure for administration of
substantive criminal law in India.

4 Code of Criminal Procedure, 1973

 y The Criminal Justice System in India is based upon the Penal legal system which was established
by the British Rule in India.
y The High Court may pass any sentence authorised by law.
y The Criminal Court in India can impound any document produced before it.
y Maintenance can be altered.
y FIR: Statements in FIR are not privileged.
y FIR is a public document and not a private document.
y FIR can be lodged by any person of sound mind.
y FIR is not a substantive piece of evidence.
y FIR can be used to corroborate or contradict the statement of the maker.
y Classification of offences has been given under the 1st schedule of the Code.
y Penalty under security bond can’t be remitted.
y Police report is not a piece of Evidence.
y Lurking house trespass can be tried summarily.
y Charge is the stage at which the trial starts and inquiry ends.
y Evidence of any person whose evidence is of a formal character may be given by affidavit.
y State government has the power to determine in the language of a subordinate court.
y Court can impose conditions on bail.
y Concept of default bail is to be examined in light of article 22 read with article 21, i.e., the
fundamental right against unlawful detention.
y Inquiry is a judicial proceeding, investigation is not.
y Inquiry must be conducted by court or Magistrate.
y Inquiry is to be conducted before framing of charges.
y Investigation refers to the proceedings or steps taken by a Police Officer.
y Object of investigation is to collect the evidence and to identify the suspect etc.
y Object of inquiry is to determine the truth or falsity of certain facts.
y Laying traps are a part of Investigation.
y A warrant-case cannot be converted into a summons-case.
y A summons-case can be converted into a warrant-case.
y An arrest-warrant may be executed at any place in India.
y A person can be arrested by a Magistrate, by a private person, and by a police officer.
y Main characteristic of this Code is separation of judiciary from executive.
y The Magistrate may direct the person so arrested to subject himself to identification by any
person.
y A private person may arrest any person who in his presence commits a cognizable and non-
bailable offence.
y A person so arrested must be produced before the Magistrate within 24 hours of arrest.
y Expression ‘Victim’ includes his/her guardian or legal heir.
y Expression ‘Wife’ under Section 125 includes divorced wife who is not remarried.

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 y Other courts like Children’s court under Juvenile Justice Act, 2000 and Panchayat Adalats are not
criminal courts.
y Document of confession as recorded under Section 164 is a presumed document under Section
80 of Indian Evidence Act.
y In a criminal appeal if the accused dies and his near relatives wish to continue, they must apply
within 30 days.

Subjective Theory

Preliminary
History and introduction of Criminal Procedure Code
After the rebellion of 1857, the British Crown took over the administration in India. Lord Cornwallis
made changes in the criminal justice system and courts were established in different parts of India.
The Code of Criminal Procedure was enacted for the first time in 1861. The next Criminal Procedure
Code was enacted in the years 1872, 1882 and 1898. The Law Commission was set up in 1955 and it
studied the old Code and presented its report in 1969. The suggestions made by the Law Commission
were incorporated in the Criminal Procedure Code, 1973. The Code 1973 came into force on 1st April
1974. The important changes in the Criminal Procedure Code have been made in the year 2013. The
Code 1973 contains 484 Sections 56 formats and two Schedules. There are 37 Chapters in it.
A horrifying incident of gang rape occurred and thereafter a committee (headed by Justice J.S. Verma)
was constituted for making recommendations regarding stringent law for sexual offences. On the
recommendation of the committee, the Government drafted Criminal Law (Amendment) Bill, 2013 and
introduced it in Lok Sabha and thereafter President has given its assent on 2nd April 2013 and deemed
to be effected on 3rd February, 2013.
It applies to the whole of India, including Union territory of Jammu and Kashmir, as the Parliament’s
power to legislate in respect of Jammu and Kashmir has been amended in August 2019 by abrogating
Article 370.
Provided that the provisions of this Code shall not apply [except Chapter VIII (security for keeping the
peace and for good behaviour), Chapter X (maintenance of public order and tranquillity), and Chapter
XI (preventive action of the police)], to the State of Nagaland to the tribal areas.
But the concerned State Government may, by notification apply such provisions or any of them to the
whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental,
incidental or consequential modification as may be specified in the notification.
Explanation: In Section (1) of this Code, tribal areas means the territories which immediately before
the 21st day of January, 1972 were included in the tribal areas of Assam, as referred to in paragraph 20
of the sixth schedule to the Constitution, other than those within the local limits of the municipality
of Shillong.

Bailable and non-bailable offence

The term Bailable offence and non-bailable offence has been defined in Section 2(a) of CrPC.
In bailable offences the accused is entitled to be released on bail as soon as he is arrested. Bail may
be granted by Police or by Court.

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In case of non-bailable offence, accused cannot claim bail as a right. The Court may release him on
bail at its discretion. (AIR 1967 SC 1639).
The first Schedule to the Cr.P.C. has classified the offences of Indian penal Code which are bailable
and non-bailable.

Charge
Section 2(b) of Cr.P.C. defines charge. A charge is a brief statement of facts which are drawn up
according to the specific language of a law. It gives clear and unambiguous notice to the accused
regarding the nature of accusation. It is an intimation to the accused and thereby he is called upon to
enter into trial of the case. Section 211 to 214 prescribes contents of a charge. Forms for charges have
been contained in form number 32 in Schedule II of the Cr.P.C.

Distinction between cognizable and non-cognizable offences

Section 2(c) and (e) of Cr.P.C. deals with cognizable and non-cognizable offences. Part I of the First
Schedule provides whether offence is cognizable or non-cognizable. Part II of the first schedule
provides that if an offence is punishable with death, imprisonment for life or imprisonment for a period
of three years, it is a cognizable offence. All other offences are non-cognizable offences.
Non-cognizable offence means an offence for which a police officer has no authority to arrest without
warrant. In case of cognizable offence or cognizable case Police Officer may arrest without warrant.

Complaint and its requisites

Section 2(d) provides that complaint means any allegation made orally or in writing to a Magistrate for
taking action under the Code. A complaint may be made by any person but it does not include a police
report. If a report is submitted by a Police Officer after investigation and it discloses non-cognizable
offence, it shall be deemed to be a complaint. Police officer who has submitted a report shall be
deemed to be a complainant.

Requisites (Essentials) of a complaint

1. Complaints must be made to a Magistrate.
2. It may be in oral or in writing.
3. Complaints must be made with the intention of setting the criminal law in motion.
4. Complaints may be made against any person whether known or unknown.
5. A Police Report should not be considered as a complaint.
6. Report of Police Officer discloses non-cognizable offence is a complaint. No form is prescribed
which the complaint must contain. There must be an allegation which prima facie discloses the
commission of an offence. Any person having knowledge of the commission of an offence may set
the criminal law in motion, though he has not been affected by the offence of complaint.
Enquiry: It means every proceeding conducted by Magistrate or Court. It does not mean enquiry of an
offence. Proceedings under Section 144 and 145, Cr.P.C. are also enquires.
Proceedings taken or initiated by a magistrate in order to arrive at a conclusion fall within the purview
of the term enquiry as defined in Section 2(g) of the Court. Enquiry is deemed to have commenced
with the submission of the police report and shall continue till the order of commitment is made under
Section 209, Cr.P.C. In other words, enquiry is other than trial.

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 Trial: The term trial has not been defined in the Cr.P.C. Trial may reasonably be taken as every proceeding
which is not an enquiry. Appeal is a continuation of a trial and it has been held to be included in the
trial. Trial is the determination of the guilt or innocence of the person and it ends in either conviction
or acquittal.

Distinction between enquiry and trial

An enquiry stops when trial begins. Enquiry is a proceeding which takes place before the Magistrate
which results in a charge or in discharge and does not include trial. At the conclusion of the trial, the
accused can either be acquitted or convicted.
Investigation: The term investigation has been defined in Section 2(h) of Cr.P.C. Investigation includes
all the proceedings conducted by a Police Officer or by any person (other than a magistrate) who has
been authorised by a Magistrate, for the collection of evidence. Chapter XII of the Cr.P.C. lays down the
procedure for the collection of the evidence and process of the investigation by the Police. Investigation
generally consists of the following steps:—
1. To proceed at the place of occurrence.
2. To ascertain the facts and circumstances of the case.
3. To discover and arrest the suspected person.
4. To collect evidence regarding commission of an offence.
5. To record statements of witnesses under Section 161, Cr.P.C.
6. At last opinion is to be formed whether material collected is sufficient to send the accused before
the Magistrate or not.

Distinction between investigation and enquiry

The definition of investigation makes it clear that word investigation is confined to proceedings of the
police or persons other than Magistrates.
The term enquiry is a proceeding which takes place before a Magistrate and is conducted prior to trial
of the case.
The object of investigation is to collect the evidence whereas the object of an enquiry is to make an
ascertainment of truth or falsity of certain facts.
Offence: Section 2(n) of Cr.P.C. defines the term offence. It means any act or omission punishable by
any law for the time being in force. The law may be under the Indian Penal Code or It may be special
or local law. The definition of an offence empowers the police to investigate offences under the
provisions of Indian Penal Code as well as under other enactment.
The following are not offences—
1. To neglect or refuse to provide maintenance under Section 125, Cr.P.C.
2. Unable to give a satisfactory account under Section 109, Cr.P.C.
3. Proceedings under Section 107, 110, 133 and 145, Cr.P.C.
4. Contempt of Court.

Summon case and Warrant case.

Section 2(w) defines the term summon case and Section 2(x) defines the term warrant case. Summon
case means a case which is not a warrant case. Warrant case means a case relating to an offence
punishable with death, imprisonment for life, or imprisonment for a term exceeding two years. The

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procedure for trial of summon cases has been given in Chapter 20 [xx] of Cr.P.C. and procedure for trial
of warrant case has been given in Chapter 19 [xix] of Cr.P.C. If a case has been tried as a summon case
and it appears to the Magistrate that it should be proceeded as a warrant case, the Magistrate can
convert the summon case into a warrant case under Section 259, Cr.P.C.
In a summons case the accused can be convicted without recording prosecution evidence if the
accused admits his guilt and no formal charge is required to frame. In a warrant case no conviction can
be recorded without examining prosecution evidence and framing a formal charge.

Constitution Of Criminal Courts And Offences

Various classes of Criminal Courts in India for trial of offences and hierarchy of Criminal Courts
Classes of Criminal Courts (Section 6)
Besides the High Courts and the Courts constituted under any law, other than this Code, there shall
be, in every State, the following classes of Criminal Courts, namely:—
y Courts of Session;
y Judicial Magistrates of the First Class and in any Metropolitan area, Metropolitan Magistrate;
y Judicial Magistrate of the Second Class; and
y Executive Magistrates.
1. Courts of Session: Every State shall consist of Session divisions and every Session divisions consist
of districts, every Court of Session shall be presided over by a judge, appointed by the High Court.
All assistant Session Judges shall be subordinate to the Sessions Judges.
2. Court of Judicial Magistrates: In every district, there shall be established Courts of Judicial
Magistrates, by the State Government after consultation with the High Court. The High Court may
appoint any Judicial Magistrate of the First Class, to be an additional Chief Judicial Magistrate or
Chief Judicial Magistrate.
3. Special Judicial Magistrate: The High Court may, if requested by the Centre or State Government,
appoint any person who holds a post under the Government as a Special Judicial Magistrate.
4. Courts of Metropolitan Magistrate: In every Metropolitan area (a city or town whose population
exceeds one million shall be a metropolitan area), the State Government after consultation with
the High Court, shall establish Courts of Metropolitan Magistrates. The High Court shall appoint
the Metropolitan Magistrate to be Chief Metropolitan Magistrate and Additional Chief Metropolitan
Magistrate.
5. Special Metropolitan Magistrates: The High Court may, if requested by Centre or State Government,
appoint any person who holds any post under the Government as a Special Metropolitan Magistrate.
6. Executive Magistrate: In every district and in every metropolitan area, the State Government may
appoint as many persons as it thinks fit to be executive Magistrates and shall appoint one of them
to be District Magistrate.
7. Special Executive Magistrate: The State Government may appoint for such term as it may think fit
executive Magistrates, to be known as Special Executive Magistrate for any particular area.

Code of Criminal Procedure, 1973 9

 Hierarchy of Criminal courts

Supreme Court

High Court

Session Court (include court of additional

session court and assistant session court

Chief Judicial Magistrate (Additional

Chief Judicial Magistrate)

Magistrate first class

Magistrate second class

Public Prosecutor
The Central Government or the State Government shall after consultation with the High Court, appoint
a Public Prosecutor and may also appoint one or more assistant public prosecutors for the purpose of
conducting any case or class of cases in any district or local area.
The District Magistrate shall, in consultation with the Session Judge, prepare a panel of names of
persons, who are, in his opinion fit to be appointed as Public Prosecutor or Assistant Public Prosecutor.
Where in a State there exists a regular cadre of prosecuting officers, the State Government shall
appoint a public prosecutor or an Additional Public Prosecutor from among such cadres. Regular cadre
of prosecuting officers means a cadre of prosecuting officers.

Power Of Courts
Kinds of punishments and powers of various Courts to punish.
Courts by which offences are triable:—
1. Any offence under the Indian Penal Code, 1860 (45 of 1860) may be tried by—
a. The High Court, or
b. The Court of Session, or
c. Any other Court by which such offence is shown in the First Schedule to be triable.
Provided that any offence under Section 376, (Section 376-A, Section 376 AB, Section 376B, Section
376C, Section 376D, Section 376 DA, Section 376 DB, subs. by Act 22 of 2018 w.r.e.f. 21-4-2018) or
376E of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided
over by a woman.
2. Any offence under any other law shall, when any Court is mentioned in this behalf in such law, be
tried by such Court and when no Court is so mentioned, may be tried by—
a. the High Court, or
b. Any other Court by which such offence is shown in the First Schedule to be triable.

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Jurisdiction in the case of Juveniles (Section 27, Cr.P.C.)
Any offence not punishable with death or imprisonment for life, committed by any person who at the
date when he appears or is brought before the Court is under the age of sixteen years, may be tried by
the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act,
1960.

Sentences which High Court and Sessions Judges may pass (Section 28, Cr.P.C.)
1. A High Court may pass any sentence authorised by law.
2. A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any
sentence of death passed by any such judge shall be subject to confirmation by the High Court.
3. An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death
or of imprisonment for life or of imprisonment for a term exceeding ten years.

Sentences which Magistrate may pass (Section 29, Cr.P.C.)

1. The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence
of death or of imprisonment for a life or of imprisonment for a term exceeding seven years.
2. The Court of a Magistrate of the First Class may pass a sentence of imprisonment for a term not
exceeding three years, or of fine not exceeding ten thousands rupees or both.
3. The Court of a Magistrate of the Second Class may pass a sentence of imprisonment for a term
not exceeding one year, or of fine not exceeding Five thousand rupees, or of both.
4. The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the
First Class.

Power of Magistrate to sentence to imprisonment in default of fine (Section 30, Cr.P.C.)

The Magistrate may award such a term of imprisonment in default of payment of fine as is authorised
by law.
Provided that imprisonment in default of payment of fine shall not be in excess of powers of Magistrate
under Section 29.
Imprisonment shall not exceed one fourth of the term of imprisonment which the Magistrate is
competent to inflict as punishment for the offence. The imprisonment in default of payment of fine
may be in addition to a substantive sentence of imprisonment. For example,
- If the Court has punished an accused for an offence under Section 379 of Indian Penal Code for
a term of one year. It is called a substantive offence. If punishment in default of payment of fine is
awarded one month. The total sentence would be one year plus one month.

Rule as to sentence in cases of conviction of several offences at one trial (Section 31, Cr.P.C.)
When a person is convicted at one trial for two or more offences, the Court may pass several punishments
for such offences. Such punishments of imprisonment shall commence one after the expiration of the
other in such order as the Court may direct. The Court may also direct that punishments shall run
concurrently.
Though in the case of consecutive sentences, the aggregate punishment may be in excess of the
powers of the Magistrate, but it shall not be necessary for the Court that the offender be sent for trial
before a Higher Court.

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 Provided that:
1. imprisonment shall not be more than fourteen years.
2. The aggregate punishment shall not exceed the amount of punishment which the Court competent
to inflict for a single offence.

Aid To The Magistrate And Police

Private person is bound to assist a Magistrate or a Police Officer.
Section 37, Cr.P.C.:—
(1) Members of the public are bound to assist a Magistrate or a Police Officer reasonably demanding
their aid regarding prevention of escape of any other person to whom such magistrate or a Police
Officer is authorised to arrest.
(2) To prevent or suppress the breach of peace.
(3) To prevent any injury attempted to be committed to any railway, canal, telegraph or public authority.

Arrest Of Persons
Police Officer can arrest without obtaining a warrant from a Magistrate
Section 41(1)
Any Police Officer may arrest any person without warrant in following circumstances:—
(a) If a person has committed a cognizable offence in the presence of a Police Officer.
(b) If any reasonable complaint has been made or credible information has been received or reasonable
suspicion exists that he has committed an offence punishable with less than seven years or up to
seven years whether with or without fine.
1. Police have reason to believe that such a person has committed the said offence.
2. The Police Officer is satisfied that such arrest is necessary.
(i) To prevent such a person from committing any further offence.
(ii) He is required for proper investigation.
(iii) To prevent such a person from tampering with evidence and from making any inducement,
threat or promise who is acquainted with the facts of the case.
(iv) Police officers are of the opinion that his presence cannot be ensured in a Court unless he
is arrested.
If a Police Officer arrests or does not arrest such a person, he shall record his reasons in
writing. In a judgement titled—
Amesh Kumar versus State of Bihar, (2014) 8 SCC 273 wherein Supreme Court has held
that if offence is punishable with imprisonment less than seven years or up to seven years
whether with or without fine, the Police Officer shall issue notice under Section 41A, Cr.P.C.
and reasons of arrest should also be mentioned and Magistrate should also write down
reasons while making order regarding detention otherwise Police as well as Magistrate shall
be liable for Departmental action.
(ba) If any person has committed a cognizable offence for a term which may extend to seven years
with or without fine or with death sentence and Police Officer has reason to believe that he has
committed the said offence.

12 Code of Criminal Procedure, 1973

(c) Who is proclaimed offender either under this Code or by order of the State Government.
(d) In whose possession any thing is found which is suspected to be stolen property and there is
suspicion that he has committed an offence with reference to the stolen property.
(e) who has obstructed a police Officer in the execution of his duty and escaped from lawful custody.
(f) Who is suspected to be deserted from any of the armed forces of the Union.
(g) Who has committed any act which is punishable out of India and if committed in India, would
have been punishable an offence and under any law relating to extradition, he is liable to be
apprehended or detained in India.
(h) Who is a released convict, commits a breach of any rule made under sub-section 5 of Section 356.
(i) For whose arrest any requisition (written or oral request) has been received from another Police
Officer.
Section 41(2) – No person concerned in a non-cognizable offence shall be arrested except under a
warrant or order of Magistrate. This sub-section is subject to the Provisions of Section 42, Cr.P.C.

Police Officer shall issue notice of appearance to the person against whom complaint has
been filed
Section 41A
The Police Officer shall issue a notice to any person against whom a complaint has been filed, where
the arrest of such person is required under Section 41(1) to appear before him or at such place as
specified in the notice.
On receiving notice, the person shall comply with the terms of notice. If such person complies with the
terms of notice, he shall not be arrested unless for reasons to be recorded, the Police Officer is of the
opinion that arrest is necessary.
If such person fails to comply with the terms of the notice, the Police Officer may, subject to the order,
as passed by the competent Court, arrest him for the offence.

Provisions of Sections 41B, 41C and 41D as inserted by the Cr.P.C. (Amendment) Act, 2008
Section 41B: Every Police Officer at the time of making arrest shall bear an accurate and clear
identification. Police officers shall prepare a memorandum of arrest and it shall be attested by at least
two witnesses. The person arrested shall be informed that he has the right to give information of his
arrest to his relative or friend, named by him.
Section 41C: The State Government shall establish a Police control room in every district and State
level. The name and address of the person arrested and name and designation of the Police Officer
who made the arrest shall be displayed on the notice board kept outside the control room. Information
regarding arrested persons shall also be collected from time to time.
Section 41D: When any person is arrested, he shall be entitled to meet an advocate of his choice during
interrogation.

Under what circumstances arrest can be made by a private person and a Magistrate
Section 46, Cr.P.C.
While making an arrest the Police Officer shall actually touch the body of the person to be arrested. If
the person submits to the authority, the latter need not actually touch or confine the body.

Code of Criminal Procedure, 1973 13

 Provided that when a woman is to be arrested, her submission to custody on an oral intimation of
arrest shall be presumed as arrest, unless the circumstances otherwise require (Act inserted by 5 of
2009).
If the person opposes the arrest or attempts to evade, the Police may use all means necessary to
effect the arrest, but death shall not be caused if the offence of the accused is not punishable with
death or imprisonment for life. No women shall be arrested after sunset and before sunrise except in
exceptional circumstances and prior permission of Judicial Magistrate has been obtained.
Arrest by Private Person: A private person may be arrested if any person commits a non-bailable and
cognizable act in his presence or the accused is a proclaimed offender. After arrest the accused shall
be without unnecessary delay made over to a Police Officer.
Arrest by Magistrate: When any offence is committed in the presence of a Magistrate, whether executive
or judicial, he may himself arrest or to order any person to arrest the offender.

Provisions regarding to search of place entered by person sought to be arrested

Section 47
Any Police Officer who has authority to arrest and he has reason to believe that the person to be
arrested has entered into any place, any person who is in charge of that place, shall allow on demand
such Police Officer free ingress thereto and shall also afford all reasonable facilities for making search
therein.
If free ingress has not been allowed, a Police Officer may break open any outer or inner door or window
of any house or place.
Provided that if such a place is in the actual occupancy of a female, Police officers shall before entering
such an apartment give notice to such female and afford her reasonable facility to withdraw herself
from that place and may then break open the apartment and enter it. If a Police Officer or other person
authorised to make an arrest, having been detained therein, he may liberate himself by breaking open
any outer or inner door or window of any house.
Section 50: Grounds of arrest and right to bail shall be informed to the person who has been arrested.
Every Police Officer or other person arresting any person shall forthwith communicate to him particulars
of the offence and other grounds for such arrest. If the offence is bailable one, the arrested person
shall be informed that he is entitled to be released on bail and he may arrange for surety.
Section 50(A): It provides that whoever has arrested any person shall inform his friends and relatives
regarding such arrest and the place where he is being held.

Personal search of arrested person

Section 51: Whenever a person is arrested without warrant and offence is non-bailable one, the Officer
making the arrest, may make a personal search of such person and all his articles be placed in safe
custody and a receipt showing the articles taken in possession by the Police Officer shall be given to
such person. Necessary wearing apparel should not be seized. Where a female is to be searched, the
search shall be made by another female with strict regard to decency.
Examination of accused by Medical Practitioner at the request of Police Officer - Section 53: When a
Police Officer has a reasonable ground to believe that an examination of a person who is accused of an
offence, will afford reasonable evidence to the commission of an offence. The police officer not below
the rank of sub-inspector shall request a registered medical practitioner to make an examination of

14 Code of Criminal Procedure, 1973

the arrested person as is reasonably necessary in order to ascertain the facts. When a female is to be
examined, the examination shall be made by a female registered medical practitioner.
Examination of person accused of rape by medical practitioner - Section 53(a): When a person is
accused of rape and there are reasonable grounds for believing that an examination of his person will
afford evidence as to the commission of such offence, registered medical practitioner shall examine
him at the request of a Police Officer not below the rank of sub-inspector. The registered medical
practitioner shall prepare a report and also give in the report following particulars:—
1. Name, address and age of the accused.
2. Marks of injury, if any, on the person of the accused and other material in particular.
3. The report shall precisely state the reasons for each conclusion arrived at.
4. Description of material taken from the person of the accused for DNA profiling.
5. Other material particulars in reasonable detail.
The exact time of commencement and completion of the examination shall also be noted in the report
and thereafter, without delay, report to be forwarded to the investigating officer.
Examination of arrested persons by Medical Officer – Section 54 – When any person is arrested, he
shall be examined by a medical officer in the service of Central or State Government and in case the
medical officer is not available by a registered medical practitioner soon after the arrest is made.
Where the arrested person is female, the examination shall be made by a female medical officer.
The Medical officer shall prepare a report mentioning therein any injuries or marks of violence and
approximate time when such injuries or marks may have been inflicted and thereafter a copy of report
shall be furnished to the arrested person or any other person nominated by the arrested person.
Provisions of Cr.P.C. of Sections 54A, 55A and 60A.
Section 54A: When identification of an accused is considered necessary for the purpose of investigation,
the Court, having jurisdiction, may, on the requisition of the officer-in-charge of the police station,
direct the arrested person (accused) to subject himself to identification. The Court may also direct in
what manner identification process will take place and by whom it would be done.
Provided that if the manner identification is to be done by a person who is mentally or physically
disabled, such process of identification shall take place under the supervision of a judicial Magistrate
and identification process shall also be videographed.
Section 55A: 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.
Section 60A provides that arrest shall be made in accordance with the provisions of this Code or any
other law providing the provisions of arrest.

Process To Compel Appearance

Procedure for issue and service of summons
The summons is merely a means of procuring attendance of the accused. Section 61 provides that
summons issued by the Court shall be in writing and signed by the presiding officer of the Court or
such other officer as directed by the High Court and shall bear the seal of the Court.
Every summons shall be served by a Police Officer or other public servant. The summons shall be
served personally, by delivery or tendering him one of the duplicates of the summons. Service of
summons or a corporation may be affected by serving it on the secretary, local manager or other
principal officer of the corporation. (Section 63, Cr.P.C.)

Code of Criminal Procedure, 1973 15

 When personal service cannot be made, in spite of best efforts of the process server, summons can be
served to adult male members of the family. A servant is not a member of a family. (Section 64, Cr.P.C.)
If service of summons is not made personally, nor to any adult member of a family, the serving officer
shall affix one of the duplicates of the summons to some conspicuously part of the house, where the
person summoned ordinarily resides. The Court after making enquiry may declare that the summons
has been duly served or may order fresh service. (Section 65) where summons are to be served to
any government servant, the Court shall send summons to the head of the office and such head shall
make service of the summons to the government servant personally and shall return it to the Court.
(Section 66)
When service of summons is to be made outside the local limits of the Courts, the Court shall send
summons to a Magistrate within whose local jurisdiction the person summoned resides. (Section 67)

Service of summons on witness by post (Section 69)

Service of summons on witnesses can be made by both modes i.e., personal service as well as by
registered post. If the witness refuses to take delivery of the summons, the Court may declare that
summons has been duly served.
Warrant, its essentials and how long warrant shall remain in force
1. Every warrant shall be in writing and signed by the presiding officer of the Court.
2. It shall bear the seal of the Court.
3. It must contain a description of the person against whom it has been directed.
4. Warrant must specify the offence.
5. It must mention the name of the person to whom it has been entrusted for its execution.
6. Any Court issuing a warrant for the arrest may direct by making an endorsement on the warrant
that a person shall be released if he gives security. The endorsement shall state the number of
sureties, the amount of surety and bond and time when he has to attend the Court.
7. A warrant of arrest shall ordinarily be given for its execution to the Police Officer but if no police
officer is immediately available, the Court may direct any other person to execute the same.

Duration of Warrant (Section 70)

1. It shall remain in force until it is cancelled or executed.
2. The Police officer or other person executing a warrant of arrest shall without delay bring the
person arrested before the Court.

Procedure for execution of warrant of arrest outside the jurisdiction of the Court
Section 78: A warrant may be executed outside the jurisdiction of the Court and instead of directing
it to any police officer the Court may forward it by post or otherwise to any executing Magistrate or
Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to
be executed, and latter shall endorse his name thereon and cause it to be executed in the manner as
provided in earlier provisions.
The Court may also forward along with the warrant such documents as sufficient to decide whether
bail should or should not be granted to the person.
Section 79: When a warrant is directed to a Police Officer for execution outside jurisdiction, the police
officer shall take it for endorsement to an executive Magistrate or to an officer-in-charge of a police

16 Code of Criminal Procedure, 1973

station, within the local limits whose jurisdiction the warrant is to be executed. Such Magistrate or
SHO shall endorse his name thereon, and such endorsement shall be sufficient authority to the police
officer to execute the same and the local police shall also assist such police officer in the execution
of the warrant. If endorsement may delay the execution of the warrant, the police officer to whom it is
directed may execute the same without obtaining such endorsement.

Procedure on arrest of a person outside the jurisdiction against whom warrant has been issued
Section 80: The person who has been arrested on the execution of the warrant issued outside the
jurisdiction, the person arrested shall be produced before the executive Magistrate or superintendent
of police or commissioner of police within whose jurisdiction the arrest was made or security is taken
under Section 71, Cr.P.C. In such a case, the arrested person is not required to be produced before such
magistrate or police officers.
Section 81: After arrest, the arrested person shall be forwarded to the court which has issued a warrant.
Provided that if the offence is bailable and the person is ready and willing to give bail and security, the
Magistrate, Superintendent of police or commissioner shall take bail or security, as the case may be
and forward the bond to the Court which issued the warrant.
Provided further that if the offence is non-bailable one, it shall be lawful for the Chief Judicial Magistrate
(subject to the Provisions of Section 437 of Cr.P.C.), or the sessions Judge of the District in which the
arrest has been made, to release such person on bail, after considering the document referred to in
sub-section 2 of Section 78 of Cr.P.C.

Procedure for proclamation and attachment of property

Proclamation for person absconding: Section 82(1) if any Court has reason to believe (whether after
taking evidence or not) that any person against whom a warrant has been issued, has absconded or
has concealed himself so that warrant cannot be executed, the Court may issue a proclamation in
writing and requiring to accused to appear before Court within thirty days from the date of publication
of proclamation.
(2) The proclamation shall be published as follows:—
It shall be publicly read and affixed to some conspicuous place of town and part of the house where
the accused ordinarily resides. A copy thereof shall also be affixed at some conspicuous part of the
Court-house.
The Court may also direct that the proclamation be published in a daily newspaper circulating in the
place where the person ordinarily resides.
Section 82(3) - A statement in writing by the Court issuing a proclamation that proclamation has been
duly published, shall be conclusive evidence that the requirements of the section have been complied
with.
(4) If the person against whom a proclamation has been issued fails to appear before the Court within
the specified time, the Court may pronounce him as proclaimed offender.

Section 83 Attachment of property of person absconding

The Court, after issuing proclamation, may order that property movable or immovable, or both of the
proclaimed offender be attached. Reasons should be mentioned in the order.
Provided that where at the time of issuing proclamation the Court is satisfied by affidavit or otherwise,
that the person against whom proclamation is to be issued (a) is about to dispose of the whole or

Code of Criminal Procedure, 1973 17

 any part of his property or (b) is about to remove the whole or any part of his property, from the local
jurisdiction of the court.
If may order the attachment simultaneously with the issue of proclamation.

Modes of attachment
If the property ordered to be attached is immovable, the attachment shall be made by seizure or, by
the appointment of receiver or by order prohibiting the delivery to the proclaimed offender.
If the property ordered to be attached is immovable, the attachment in case of land paying revenue to
the State Government through Collector, and in all other cases—
1. by taking possession or
2. by the appointment of a receiver
3. by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed
offender.
If the property ordered to be attached is of a perishable nature, the Court may order sale thereof.
The power, duties and liabilities of the receiver shall be the same as mentioned in Civil Procedure
Code, 1908.
If the family members of proclaimed offenders are residing in a house they cannot be thrown out from
the house. A citizen’s right to shelter and livelihood cannot be interfered with.

Claims and objections to attachment - release, sale and restoration of attached property
Section 84: Where the property of a third person has been attached, he may prefer claim or objection
within six months of the attachment. The Court after inquiry may allow or disallow the claim or
objections.
If the claimant or objector has been dead his legal heir may continue the claim or objections.
Claim or objection may be preferred or made in the Court by which order of attachment has been
made.
Any person whose claim or objection has been disallowed, he may institute a Suit within a period of
one year. The order shall be conclusive until the decision of a Civil Suit.

Release, sale and restoration of attached property: Section 85

If the proclaimed offender appears within the time specified in the proclamation, the Court shall
release the property from attachment.
Sale: If the proclaimed offender does not appear within the time specified in the proclamation, the
property under attachment shall be at the disposal of the State Government. The Property can be sold
after the expiration of a period of six months or after the disposal of the claim or objection. But where
the property is of a perishable nature, it may be sold earlier.
Restoration: If, within two years of attachment, the proclaimed offender appears before the Court and
satisfies the Court that he has not avoided execution of a warrant or he had no notice of proclamation,
and if the property has already been sold, the Court may order net proceeds of the sale and residue
of the property to be delivered to him after deducting costs incurred in consequence of attachment.
If the Court has declined to make a restoration order, an appeal may be preferred.

18 Code of Criminal Procedure, 1973

Warrant to be issued in lieu of or in addition to summons
Section 87: This Section empowers the Court to issue a warrant for arrest only in cases in which it is
empowered to issue a summons, and not if it has no power to issue summons, warrant is to be issued
after recording reasons. The Court must be satisfied that he will not obey summons or that summons
has been duly served and no reasonable excuse has been offered for such failure.
In Pradyut Kumar Baidya versus Chaya Rani Baidya, 1995 CLJ 3155 (Cal) wherein Calcutta High Court
has held that if the witness has failed to appear even after service of summons, Magistrate can take
resort to provisions of Section 87, Cr.P.C.

Process To Compel The Production Of Things

Court can issue summons to produce documents or other things
Section 91 confers powers to the Court or officer-in-charge of police station to summon any document
or thing which is considered necessary or desirable for the purpose of any investigation, inquiry or trial.
A person can be summoned to produce a document or thing which is not only in his possession but
also in his power. The Court can order for production not only to the party to the proceedings but also
to the third parties.
This Section shall not be deemed to affect Sections 123 and Section 124 of the Indian Evidence Act or
Banker Books Evidence Act, 1891.
Documents which are in the custody of the postal or telegraph authority shall not be summoned under
the provision of Section 91 of Cr.P.C.

Procedure as to documents in the custody of portal or telegraph authority

Section 92: If the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court is of
opinion that any document, parcel of thing in the custody of the postal or telegraph authority is being
required for the purpose of any investigation, inquiry, trial or other proceeding, it may direct postal or
telegraph authority to deliver such as directed by Court (i.e., District Magistrate, CJM, Court of Session
or High Court).
The power of the Magistrate, whether judicial or executive, or Commissioner of Police, District
Superintendent of Police is confined to the extent that postal, or telegraph authority may be directed
to make search and to detain documents until an order under Section 92(1) is being received.

General search warrant

Section 93 of Cr.P.C. deals with general search warrants. Section 93 provides that when the Court has
reason to believe that any person to whom summon or order under Section 91 or a requisition under
Section 92(1) has been issued, will not produce a document or thing.
The Court is unaware in whose possession document or thing is, or where the Court considers that the
purpose of any inquiry, trial or other proceeding will be served by a general search, Court may issue
search warrant and the person to whom such warrant is directed, may search the particular place or
part thereof.
Magistrate can issue directions to search a document or thing in the custody of the postal or telegraph
authority. District Magistrate or Chief Judicial Magistrate is authorised to issue search warrants with
respect to postal or telegraph authority.

Code of Criminal Procedure, 1973 19

 Search for persons wrongfully confined
Section 97, Cr.P.C.: District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class can
issue a warrant under this Section only if he has reason to believe that any person is confined under
such circumstances that the confinement amounts to offence, it may issue search warrant and the
person to whom search warrant is directed, may search the person so confined and the person if
found, shall be taken before Magistrate immediately, who shall make such order as seems proper.

Power to compel restoration of abducted females

Section 98: An action under Section 98 can be taken only upon a complaint made on oath of the
abduction or unlawful detention of a woman or a female child under the age of 18 years for any
unlawful purpose. District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class may
make an order for the immediate restoration of the woman to her liberty or if she is a female child
below 18 years to her husband, parent or guardian.

Search for places suspected to contain stolen property, forged documents etc.
Section 94: The essential requirement of Section 94 is that the District Magistrate, SDM or Magistrate
of first class has reason to believe on information that any particular place is used for the deposit or
sale of stolen property or for manufacture of forged documents, false seals, counterfoil stamps etc.
The Magistrate may examine the informant on oath to ascertain the bona fides of the information.
Magistrate may authorise any Police Officer above the rank of Constable, to enter such place and
search the same. The Police Officer shall take possession of the property and convey the same to the
Magistrate. Police officers may also take into custody every person who is found in the possession of
such property and carry such person before Magistrate.

Search warrant for seizing forfeited publications

The essential conditions for invoking Section 95 are as under:—
That the newspaper, book, or document contain any matter.
1. The publication of such matter is punishable under Section 124A or 153A or 153B, or Section 293 or
295A of IPC.
2. The Government has formed a certain opinion.
Thereupon, the State Government may, by notification, declare every copy of the issue containing such
matter to be forfeited.

Section 96: Application to High Court for setting aside declaration of forfeiture
Any person having any interest in any newspaper, book or document, in respect of which a declaration
of forfeiture has been made under Section 95, may apply to the High Court to set aside the declaration.
An application to the High Court has to be made within two months from the date of publication of
declaration in the Official Gazette.
If the High Court is satisfied that publication is not an offence under the Provision of IPC, it may set
aside the order of forfeiture.

Searches contained in Section 100, 102 and 103, Cr.P.C.

Section 100, Cr.P.C. Whenever any place is liable to be searched, the person who is in charge of such
a place, shall allow free ingress to the place and to afford all reasonable facilities. But if free ingress
is not obtained, entrance may be effected as mentioned in sub-section (2) of Section 47 of the Code.

20 Code of Criminal Procedure, 1973

The Police Officer is bound to call two or more respectable inhabitants of the locality, where search is
to be made, to attend and witness the search. The search shall be made in their presence and a list of
all things seized in the course of such search shall be prepared. Any person who without reasonable
cause refuses or neglects to attend and witness a search, when called upon to do so, shall be deemed
to have committed an offence under Section 187 of the Indian Penal Code.
Section 102 will come into play only when a Police Officer seizes any property which is alleged
or suspected to be stolen, or which may be found under circumstances creating suspicion of the
commission of any offence.
Every Police Officer shall forthwith report the seizure to the Magistrate having jurisdiction.
Under Section 103 The Magistrate can act under this Section, if he is competent to issue a search
warrant. This Section enacts that, instead of issuing a search warrant, the Magistrate may direct a
search to be made in his presence.

Security on conviction for specified offences

When a Court of Session or a Court of a Magistrate convicts a person of any of the offences specified in
Chapter VIII of the IPC, the Court may at the time of passing of sentence, order him to execute a bond,
with or without sureties, for a period not extending three years.
If the conviction is set aside on appeal or otherwise, the bond so executed shall become void.

Security For The Keeping Peace And For Good Behaviour

Section 107 is a preventive provision. It empowers the executive Magistrate to prevent disturbance of
the public tranquillity and breach of peace, by requiring the persons who are likely to cause disturbance
to public peace, to execute bond, with or without surety, for a period not extending one year, for
keeping peace.
This Section is intended to prevent a breach of the peace in future and not punitive. It is to be noted
that proceedings under Section 107 are not an alternative to Section 145. The proceedings under
Section 107 are started against a person who is likely to commit a breach of peace, whereas under
Section 145 as a result of land dispute, a breach of peace is likely to be caused.

Security for good behaviour from persons disseminating seditious matters

Section 108 of Cr.P.C. provides that when an executive Magistrate receives information that any person
within his jurisdiction, intentionally disseminates or attempts to disseminate or abets the dissemination
of:
1. any seditious matters (under Section 124A, 153A, 153B or Section 295 of IPC.
2. Any matters concerning a judge which amounts to criminal intimidation or defamation under IPC.
3. Makes, publishes, keeps for sale, imports, exports or publicly exhibits any obscene matter under
Section 292, IPC, the Magistrate may require such person to execute a bond, with or without
sureties, for his good behaviour for such period, not extending one year, as the Magistrate thinks
fit.
No proceeding shall be taken under this Section if publication has taken place in conformity with rules
laid down in the Press and Registration of Books Act.

Security for good behaviour can be taken from suspected person

Section 109, Cr.P.C.: When an executive Magistrate receives information that within his local jurisdiction,
a person is taking precautions to conceal his presence and there is reason to believe that he is doing

Code of Criminal Procedure, 1973 21

 so with a view to commit a cognizable offence, the Magistrate may require such persons to execute a
bond, with or without sureties for his good behaviour for such period not exceeding one year, as the
Magistrate thinks fit.
Section 109 lays down two prerequisites before on order thereunder can be made against a person
viz.—
1. That the person concerned must be taking precautions to conceal his presence.
2. That there is reason to believe that such a person is taking such precautions with a view to
committing a cognizable offence. If one of them is absent, there can be no order under this
section.
The circumstances must be proved to show that the concealment is to commit a cognizable offence
and not to escape the arrest by the Police, illustration.
A person who gives a false name and delivers letters secretly, containing incitement to commit crime
or demanding money for the means of committing crime, falls within this Section.

Security for good behaviour can be taken from habitual offenders

Section 110, Cr.P.C.: When on executive Magistrate receives information that within his local jurisdiction
any person is a habitual offender (i.e., a robber, thief, forger, habitually protects thieves, habitually
commits or attempts or abets kidnapping, abduction, extortion, cheating or mischief.) is desperate and
dangerous, the Magistrate may require him to execute a bond with sureties for his good behaviour, for
such period, not exceeding three years, the Magistrate thinks fit.
The object of Section 110 enables a Magistrate to take security for good behaviour for the prevention
and for the punishment of offences. Seven classes (a) to (g) of Section 110 enumerate the habitual
offenders against whom action may be taken. Desperate and dangerous means a man has a reckless
disregard of the person and property of others and detrimental to the society.

Procedure for making an inquiry when order is to be made under Section 107, 108, 109 and
under Section 110 of Cr.P.C.
Section 111 - When a Magistrate deems it necessary to make an order under Section 107, 108, 109 and
110, he shall make an order in writing. The substance of information, amount of bond and number and
class of sureties is to be mentioned in the order.
Section 112 - If the person is present in person, the order shall be read over and explained to him.
Section 113 - If the person is not present in Court, Court may cause his appearance by issuing summons
or warrants. If the Court is of opinion that commission of breach is required to be prevented, the Court
may issue a warrant for his arrest.
Section 114 - Every summon or warrant, shall be accompanied by a warrant of arrest.
Section 115 - The Magistrate may, if sees sufficient course, dispense with personal attendance of any
person.
Section 116 - When a person appears before Court an order has been read over and explained to him.
The Magistrate shall proceed to make an inquiry regarding the truth of information.
In inquiry, evidence shall be recorded as it is recorded in summon cases.
If the Magistrate is of opinion that immediate measures are necessary for the prevention of the breach
of peace, he may direct after commencement and before completion of inquiry to execute bond with
or without sureties.

22 Code of Criminal Procedure, 1973

But the person against whom proceedings are being taken under Section 108, 109 and under Section
110 shall not be directed to execute a bond for maintaining good behaviour.
The inquiry under Section 116 shall be completed within a period of six months, after the expiry of
said period, proceedings shall be terminated unless for special reasons to be recorded, Magistrate
otherwise directs.
Section 117 - After making an inquiry, it is proved that it is necessary that security be taken for keeping
peace or maintaining good behaviour, the Magistrate shall direct to execute a bond with or without
sureties.
Section 118 - If, on an inquiry, it is not proved that it is necessary for keeping peace or maintaining
good behaviour, bond is to be executed, the Magistrate shall discharge him, if he is in custody, shall
release him.
Section 122 - If any person ordered to give security under Section 106 or Section 117 does not give
security, shall be committed to prison and if he is already in prison, be detained in prison until such
period expires.
If any person after execution of bond, with or without sureties, commits the breach, the Magistrate,
after recording the ground, may order that the person be arrested and be detained in prison until the
expiry of the period of bond.

Order For Maintenance Of Wives, Children And Parents

Provision and procedure for maintenance of wives, children and parents
Section 125, Cr.P.C.
If any person having sufficient means neglects or refuses to maintain his wife, his legitimate or
illegitimate minor child, (whether married or not), or his parents, who are unable to maintain themselves
or to his legitimate or illegitimate child, who has attained majority, but by reason of any physical or
mental abnormality or injury unable to maintain itself, a Magistrate of the first class upon proof of such
neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or
such child or parents, at such monthly rate as the Magistrate thinks fit.
Provided that if the husband of a minor female child is not possessed of sufficient means, the Magistrate
may order the father to make a monthly allowance, until she attains her majority.
Provided that during the pendency of the proceedings, the Magistrate may make an order that interim
maintenance allowance and for expenses of the proceedings, be paid to wife, child or father or mother
as the case may be.
Provided also that an interim maintenance application and expenses of proceedings be disposed of
within sixty days from the date of the service of notice of the application.
Explanation: Minor is a person, who has not attained majority under the Indian Majority Act, 1875.
(b) Wife includes a woman who has been divorced by or has obtained a divorce from her husband
and has not remarried. Maintenance allowances, interim maintenance allowance and expenses of
proceedings be payable from the date of order, or, if so ordered, from the date of such application.
If any person fails to comply with the order of maintenance, for every breach, Magistrate may issue
recovery warrant for the recovery of due amount (in accordance with Section 421, Cr.P.C.), and may
sentence him, for the whole or each month’s allowance remaining unpaid to imprisonment for a term
which may extend to one month or until payment if sooner made.

Code of Criminal Procedure, 1973 23

 Provided that application for recovery of maintenance shall be made within one year when it became
due.
Provided further that if the person offers to maintain his wife on conditions of her living with him, the
Magistrate may order for maintenance allowance, if he is satisfied that ground for refusal is just.
Explanation.—If the husband is living with a second wife or he keeps a mistress, these are just grounds
for the wife’s refusal to live with him.
The wife shall not be entitled to maintenance allowance if she is living in adultery, if without sufficient
reason she refuses to live or that they are living separately by mutual consent. As proof of these facts,
the Magistrate shall cancel the order of maintenance. If the husband is impotent or is suffering from
venereal diseases, these are also sufficient grounds for living separately.
The right of a wife and of children to be maintained by the husband and by the actual father is a
statutory right and the duty, created by express enactment and not affected by personal law.

Procedure
Section 126:—Proceedings under Section 125 may be taken against any person in any district:
1. where he resides or
2. where he or his wife resides or
3. where he last resided with his wife or case they may be, with the mother of the illegitimate child.
4. All evidence to such proceedings shall be taken in the presence of the person against whom order
for maintenance is proposed to be made, if his personal attendance has been dispensed with, in
the presence of his pleader, and evidence shall be recorded in the manner prescribed for summon
cases:
Provided that if the Magistrate is satisfied that the person against whom maintenance order is proposed
to be made, is willfully avoiding service or willfully neglecting to attend the Court, the Magistrate may
proceed to hear and determine the case ex-parte.
If application for setting aside ex-parte order is made within three months and good cause having been
shown, the Magistrate may set aside ex-parte order subject to payment of costs to the opposite party
as the Magistrate thinks just and proper.

Maintenance allowance may be altered, varied or cancelled

Section 127, Cr.P.C.
(1) If the circumstances have been changed, the Magistrate may make an alteration in the allowance
for the maintenance or the interim maintenance, as he thinks fit.
(2) Where it appears to the Magistrate that, as a consequence of the decision of a competent Civil
Court, maintenance order (under Section 125) be cancelled or varied, he may cancel or vary the same
accordingly.
(3) Magistrate may cancel the maintenance order in the following circumstances:
(a) If women has remarried after obtaining divorce
(b) If after divorce, under any personal law or custom, she has taken lump sum payment.
(c) If women has voluntarily surrendered her right for maintenance
(d) At the time of making decree for the recovery of any maintenance or dowry amount, the Civil Court
shall take into account the sum which has been paid in compliance of maintenance order under
Section 125, Cr.P.C.

24 Code of Criminal Procedure, 1973

Enforcement of a maintenance order
Section 128:—A copy or order of maintenance shall be given without payment to the person in whose
favour it is made or his guardian, if any, or to the person to whom maintenance is to be paid.
Two forums for enforcement of order of maintenance:—
1. The Magistrate who made the original order or
2. by the Magistrate within whose jurisdiction the person ordered to pay maintenance has gone to
reside (AIR 1935 Rang 407)
In other words, if the husband is beyond the jurisdiction of the Magistrate who made the order of
maintenance, he may, in his discretion, issue a warrant for collection of arrears of maintenance or refer
the applicant to the Magistrate having jurisdiction at the place where the husband has gone to reside.

MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY

Powers of Executive Magistrate and Police Officer in dispersing unlawful assemblies
Section 129: Any executive Magistrate or Officer-in-charge of a Police Station, any Police Officer, not
below the Rank of a Sub-Inspector may command an unlawful assembly to disperse.
If such unlawful assembly does not disperse, Executive Magistrate or Police Officer, may require
assistance of any male persons and if necessary, may arrest and confine the persons who are part of
unlawful assembly.
Section 130: The Executive Magistrate of Highest Rank may disperse unlawful assembly by using armed
forces.
Section 131: When the public security is in danger and executive Magistrate cannot be communicated,
any commissioned or Gazetted Officer of the Armed Forces disperses the unlawful assembly with the
help of armed forces.
If an Executive Magistrate is available, armed force officers shall obey the instructions of the Magistrate.

Protection against prosecutions for acts done under Section 129, 130 or 131
Section 132 grants protection to the officers against prosecution for any act purporting to be done
under Section 129 to 131, except on sanction of the Government.
If an executive Magistrate, Police Officer or officer of the armed forces have acted in good faith, it shall
not be deemed to have committed any offence.

Protection against prosecution for acts done under Section 129 Section 130 and 131
If any Act has been purported to be done under Section 129, 130 or 131, no prosecution shall be instituted
in any criminal Court except with the sanction of the central Government or State Government.
No Executive Magistrate or Police Officer or Officer of armed forces, acting in good faith under Section
129, 130, 131 shall be deemed to have committed an offence.

Circumstances under which a Magistrate can take action for the removal of public nuisance
As per Section 133, District Magistrate or Sub-Divisional Magistrate or Executive Magistrate on receiving
Police report or other information and on taking such evidence as he thinks fit, may make a conditional
order and require any person
1. To remove any obstruction from any public place or from any way,
2. or to regulate any trade or occupation so as it should not be injurious to public health.
3. To construct any building in such a way as it should not occasion conflagration or explosion.

Code of Criminal Procedure, 1973 25

 4. To remove, repair or support any building which is likely to fall.
5. To fence any tank, well or excavation so as to prevent danger arising to the public.
6. To destroy, confine or dispose of any dangerous animal.
The Magistrate may fix the time limit within which the order is to be complied with. If any person has
any objection regarding order, he should appear before Court and show cause, why the order should
not be made absolute.
No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Procedure adopted by a Magistrate when a person served with a conditional order and he
denies the execution of a public right
The conditional order shall be served in the manner as provided for service of summons. It shall be
served personally to the person against whom it is made. If such order cannot be so served, it shall
be notified by proclamation, a copy thereof shall be stuck up at such place as is sufficient to convey
information to such person.
The person against whom order is made shall obey it or he may appear and show cause against the
order.
If the person does not appear to show cause or fails to obey it, he shall be liable to be punished under
Section 188, IPC and order shall be made absolute.
If the person appears before the Court and denies the existence of any public right, the Magistrate
may inquire into the matter. The Magistrate shall take evidence in the matter as a summon case.
The Magistrate may direct a local investigation to be made by such a person as he thinks fit or may
summon and examine an expert. The Magistrate may issue written instructions as to what manner local
investigation is to be made. The Magistrate may also direct by whom expenses of local investigation
and expert is to be paid. The report may be read as evidence in the case.
If the Magistrate is satisfied that the order is reasonable and proper, the order shall be made absolute.
When the order has been made absolute, the Magistrate shall give notice of the same to the person
against whom the order was made and shall require him to perform the act directed by the order
within the time fixed in the notice.
If such an act is not performed within the time fixed, the Magistrate may cause it to be performed and
costs may recover by sale of property removed by the order or by the sale of any movable property of
the person against whom order was made. [Section 141]

Injunctions pending inquiry

If the Magistrate making an order under Section 133 considers that immediate measures should be
taken to prevent imminent danger or injury to the public, he may issue such an injunction against the
person and require him to obviate or prevent such danger or injury.

Powers of the Magistrates to issue temporary order in urgent cases of nuisance or apprehended
danger
Section 144: If the District Magistrate, a Sub-Divisional Magistrate or any other executive Magistrate is
of opinion that there is sufficient ground for proceeding under this section and immediate prevention
or speedy remedy is desirable, the Magistrate may by a written order, direct any person to abstain
from a certain act or take certain order with respect to certain property in his possession or under his
Management.

26 Code of Criminal Procedure, 1973

The basis of Section 144 is that in case of urgent situation, direction is to be issued to prevent
disorders, obstructions and annoyances with a view to secure the public weal by maintaining public
peace and tranquillity which is the primary function of the Government.
It is settled law that the Magistrate is authorised to act under Section 144(1), (2), Cr.P.C. only when he
is satisfied as regards the existence of such emergent or urgent circumstances and urgency must be
reflected in the order itself with reasons thereof (Premoda Medhi versus Gauhati Roller Flow Mills Ltd.,
2003 Cr LJ 122 (123) (Gau).
Though a person may have a right to use his property as he pleases, but if the mode of enjoyment of
the property results or tends to result in a breach of public peace, a Magistrate has power to abstain
him temporarily from using his property.
An order under this Section may in case of emergency be passed ex-parte. An order may be directed to
a particular person or the public. This order shall remain in force for a period of two months.
Provided that if the State Government considers it necessary to do so for preventing danger to human
life, health or safety or for preventing a riot or an affray, it may by notification direct that such order
shall remain in force for a further period of six months.
The Magistrate may either, on its motion or on the application of any aggrieved person, rescind or alter
any order made under this section.
The State Government may also rescind or alter any order made under Section 144(4) of Cr.P.C.

Power of the Magistrate to prohibit carrying of arms in procession or mass drill or mass
training with arms
Section 144A:
1. The District Magistrate may, whenever he considers it necessary, for the preservation of public
peace or public safety or the maintenance of public order, by public notice or order, prohibit in any
area within his local jurisdiction, the carrying of arms in any procession or the organising or holding
of, or taking part in any mass drill or mass training with arms in any public place.
2. A public notice or order under this section may be directed to a particular person or to any
community, party, or organisation.
3. Public notice issue or order made under this Section shall not remain in force for more than three
months.
4. The State Government may by notification, direct that a public notice issued or order made by the
District Magistrate, shall remain in force for further period not exceeding six months.
5. The State Government may, in general or special order, delegate its power under sub-section (4)
to the District Magistrate.

Dispute concerning land or matter is likely to cause breach of peace

Whenever an executive Magistrate is satisfied from a police or other information that within his local
jurisdiction a dispute is likely to cause a breach of peace concerning any land or water, he shall make
an order in writing and requiring the parties concerned to attend the Court in person or by pleader and
to put settlement of their respective claims.
1. For the purpose of this Section, land or water includes buildings, markets, fisheries, crops or other
produce of land.

Code of Criminal Procedure, 1973 27

 2. A copy of the order shall be served in the manner as provided for service of summons, and at
least one copy shall be published by being affixed to some conspicuous place of the subject of the
subject.
3. The Magistrate shall hear all the parties and receive such evidence as may be produced by the
parties and decide which of the parties was in possession of the subject of dispute, at the date of
the order made by him under sub-section (1) of Section 145, Cr.P.C.
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully
dispossessed within two months next before the date on which the report or information received,
he may treat the party so dispossessed as if that party has been in possession on the date of his
order under sub-section (1).
4. Any party may appear and show that no such dispute exists and in such case Magistrate shall
cancel his order and otherwise order under sub-section (1) shall be final.
5. If the Magistrate decides that one of the parties shall be treated as in possession of such dispute,
he shall order that party shall not be entitled to possession and not to be evicted except in due
course of law. Magistrate may restore the possession to the party who has been forcibly and
wrongfully dispossessed.
6. The order shall be served and published as mentioned in sub-section (3).
7. If any party to such proceedings dies, the Magistrate may cause the legal representative of the
deceased party to be made a party to proceedings.
8. If the Magistrate is of opinion that any crop or other produce of the property is subject to speedy
and natural delay, he may make an order for the proper custody or sale of the property.
9. The Magistrate may, at any stage of the proceedings, issues summons to any witness directing him
to attend or produce any document or thing.
In a judgement title Kuldeep Singh versus State of Haryana, CRM - M - 22030 - 2019, date of decision,
Punjab and Haryana High Court has held that in the proceedings under Section 145, Cr.P.C., the question
which need determination are which party is in possession or was dispossessed two months immediately
before the initiation of proceedings under Section 145 of the Code. In these proceedings, question of
title and consequent entitlement is not required to be adjudicated upon. So executive magistrates on
whom the power have been conferred under Section 145 of the Code are expected to adjudicate upon
the question which party is in possession or if any party has been dispossessed two months before
the date of initiation of proceeding then restore the possession of party so dispossessed forcibly. The
readings under Section 145 of the Code are Sub-Subservient to adjudication by the Civil Court and it
has been repeatedly held that if civil suit is pending, executive magistrate normally should not initiate
proceeding under Section 145 of the Code and relegate the parties to file an application before the
Civil Court in a pending suit particular Li when in a civil suit such order as may be necessary can be
passed. Reference in this regard can be made to Aneesh Tiwari versus Lalta Prasad Duvet and another,
(2000) 4 SCC 440.

Appointment of Receiver
Section 146, Cr.P.C.: If the magistrate at any time after making order under Section 145, Cr.P.C. considers
that the case is to be one of emergency or if he decides that no party is in possession as referred in
Section 145 or if he is unable to satisfy as which of them is in possession of property, he may attach
the property until rights of parties are decided by a civil court, he may withdraw the attachment if he
is satisfied that there is no longer breach of peace regarding subject of dispute.

28 Code of Criminal Procedure, 1973

After attachment, he may appoint a receiver to look after the subject of dispute. The receiver shall have
the powers as provided under Code of Civil Procedure.
If the receiver is subsequently appointed by a civil court, he shall order the receiver appointed by him
to handover the possession of the subject of dispute to the receiver appointed by the civil court.

Right of use of land or water

Section 147: whenever an executive magistrate is satisfied with police report or other information that
a dispute is likely to cause a breach of peace regarding right of user of any land or water, whether such
right be claimed as an easement or otherwise he shall require the parties concern to appear in person
or by pleader and to put up the written statements of the respective claims.
Explanation: the expression land or water has the same meaning as mentioned in sub-section 2 of
Section 145, Cr.P.C.
Section 147(2): the magistrate shall peruse the statements, hear the parties and receive all such
evidence as may be produced by parties and decide whether such right exists. For the purpose of
inquiry, provisions of Section 145, Cr.P.C. shall apply.
Section 147(3) Cr.P.C.: If it appears to the magistrate that such rights exist he may make an order
prohibiting the interference with the exercise of the right and removal of obstruction in the exercise
of such right.
The date of the institution of inquiry is the date when the likelihood of breach of peace is brought to
the notice of the magistrate by an aggrieved person or by a police report. Thus a period of three months
has to be computed from the date when the report is received by the Magistrate.
The pendency of the civil suit is no bar to the initiation of proceedings under Section 147, Cr.P.C., when
a dispute is likely to cause apprehension of breach of peace regarding any right of use of land or water.

District Magistrate and Sub-Divisional Magistrate may depute any subordinate Magistrate for
local inquiry
Section 148
When a local inquiry is necessary for the purposes of Section 145, 146 or Section 147, a District Magistrate
or Sub-Divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry. It
may also be directed by whom expenses and costs inquiry would be paid. The report may be read as
evidence in the case.
Section 148 of Cr.P.C. does not confer any right on any party to insist that a subordinate Magistrate
should be appointed for the purpose of conducting an inquiry into the matter. If the District Magistrate
or SDMconsiders it necessary, they may depute any subordinate Magistrate for making inquiry in the
matter.
Sooraj Mal versus State of Rajasthan, 1998 Cr LJ 1515.

Preventive Action Of The Police

Preventive actions of police
Section 149 to Section 153
Police Officers have been armed with extensive powers to prevent commission of cognizable offences.
Section 149 enables a police officer to prevent the commission of any cognizable offence.

Code of Criminal Procedure, 1973 29

 Section 150: If the Police Officer receives information of a design to commit such an offence, he shall
communicate information to his superior officer or to other officers.
Section 151: If the commission of offence cannot be otherwise prevented, he can forthwith arrest the
person so designing.
The maximum period of detention under Section 151 can be for twenty-four hours only, unless it is
authorised or required under any other Section or any other law.
Section 152: Prevention of injury to public property: Section 152 enables a police Officer to prevent any
injury committed to any public property, movable or immovable.
Section 153: Inspection of weights and measures: The Officer who can act under Section 153 is the
Officer-in-charge of a police Station, and the place searched should be within the limits of that station.
He can seize false weights or measures if any are found and to report the seizure to the Magistrate
having jurisdiction.

Information To The Police And Their Powers To Investigate

First Information Report - its object and evidentiary value
Section 154 regulates the manner of recording the first information report relating to the commission
of a cognizable offence. First information report if given orally, shall be reduced into writing, and be
read over to the to the informant and shall be signed by the person giving it. After an entry shall be
made in a book kept by such officer.
Provided that if the information is given by the women against whom an offence under Section 326A,
326B, 354, 354A, 354B, 354C, 354D, 376, 376A, Section 376 AB, Section 376B, Section 376C, Section
376D, Section 376 DA, Section 376 DB) 376E or Section 509 IPC is alleged to have been committed or
attempted, information shall be recorded by a women police officer or any woman officer.
(a) Provided further that if the person against whom an offence under Section 354, 354A, 354B, 354C,
354D, 376, (376A, Section 376 AB, Section 376B, Section 376C, Section 376D, Section 376 DA,
Section 376 DB, Section 376E or Section 509 IPC is alleged to have committed or attempted, is
temporarily or permanently mentally or physically disabled, such information shall be recorded at
the residence of the person who has made report or at a convenient place of such person’s choice.
(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-section (5A) of Section 164 as soon as possible.
2. A copy of the First Information report shall be given forthwith, free of cost to the informant.
3. If an officer-in-charge of a police station refuses to record the information, the informant shall send
information in writing by post to the Superintendent of Police concerned, who may investigate the case
himself or may direct an investigation to be made by any police officer subordinate to him.
The principal object of the first information report is to set the Criminal law in motion and to trace and
bring to book guilty.
It is well settled that delay in giving the FIR by itself cannot be a ground to doubt the prosecution
case. If there are chances of fabrication in that case delay would be fatal to the prosecution case. It is
essential that the delay in making a report at the Police station or making the complaint in the Court
should be explained satisfactorily.

30 Code of Criminal Procedure, 1973

 Investigation
*FIR under Section 154, Cr.P.C. or magistrate order under Section 155(6), Cr.P.C. For investigation on
complaints being made under Section 190, Cr.P.C.
Copy of FIR sent to magistrate within 24 hours
*To proceed on the spot
Prepare site plan
Record statement under Section 161, Cr.P.C.
To obtain FSL report spot, provide report etc.
To submit a chargesheet in court under Section 173, Cr.P.C.
If no case to discharge accused under Section 169, Cr.P.C.

Evidentiary Value
It is settled law that the first information report is not substantive evidence. It can be used only to
contradict the maker thereof or for corroborative evidence and also to show that the implication of the
accused was not an afterthought Sohan Lal versus State of Punjab, AIR 2003 SC 4466.

Information about a non-cognizable offence

Section 155, Cr.P.C.
When an information is given to an officer-in-charge of a police station about a cognizable offence, he
shall enter the substance of information in a book kept by such officer in such form as prescribed by
the State Government and refer the information to the Magistrate.
A non-cognizable case shall not be investigated by a police officer except by an order of Magistrate
having power to try the case. Any police officer who is investigating a cognizable case by order of
Magistrate shall have the same power as he may exercise in a cognizable case (Except the power to
arrest without warrant).
When 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.
The investigation of a non-cognizable offence by the police without the permission of the competent
Magistrate is illegal, subsequent permission granted cannot cure the illegality. Rupan Deol Bajaj versus
Kanwar Pal Singh, AIR 1996 SC 309.
Where a case is registered as a cognizable offence, but after investigation is found as a non-cognizable
case, the bar of Section 155(2) will not apply. Mailsomi versus State, 1994 Cr LJ 2338 (Mad).

Public officer’s power to investigate cognizable cases

Section 156(1) - Any Police Officer may investigate any cognizable offence without the order of a
Magistrate.
(2) No proceeding of a police officer shall at any stage be called in question on the ground that the
officer was not empowered to investigate under this Section.
(3) Any Magistrate empowered under Section 190 May order such an investigation as above mentioned.
In a judgement titled Priyanka Srivastava versus State of Uttar Pradesh, Criminal Appeal No. 781 of 2012,
dated 19-03-2015 Apex Court has held that a stage has come in this country where Section 156, Cr.P.C.
applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation

Code of Criminal Procedure, 1973 31

 of the jurisdiction of the Magistrate. It is because once an affidavit is found to be false, he will be
liable for prosecution in accordance with law. Before filing an application under Section 156(3), prior
application to the SHO concerning the Police Station under Section 154(1) and under Section 154(3),
Cr.P.C. should be given. This will deter him to casually invoke the authority of the Magistrate under
Section 156(3), Cr.P.C.

Procedure for investigation?

Section 157, Cr.P.C.
If, from any information, officer-in-charge of a police station has reason to suspect about the
commission of an offence, he shall forthwith send a report to the Magistrate and shall proceed to the
spot or he shall depute any of its, subordinate officer to proceed to the spot and to investigate the
facts and circumstances of the case and if necessary, to make measures for discovery and arrest of
the offender provided that.
(a) When information as to commission of any such offence is given against any person by name and
the case is not of a serious nature, the officer-in-charge of a police station shall not proceed or
depute any of its subordinate officers for investigation of the case.
(b) If it appears to the officer-in-charge of the police station that there is no sufficient ground for
entering into an investigation, he shall not investigate the case.
Provided that if offence is of rape, statement of victim shall be recorded at his residence or in the
place of her choice and in the presence of her parents, guardian or near relatives or social worker
of the locality.
(2) If the Police Officer is not investigating the case, he must give reasons and shall also notify the
informant that he will not investigate the case or cause it to be investigated.

Provisions under Section 158, 159 and 160 of Cr.P.C.

Section 158, Cr.P.C. Every report under Section 157, Cr.P.C. shall be sent to Magistrate through a superior
police officer.
(1) Such superior police officer may give instruction to the officer-in-charge of the police station as he
thinks fit and later after recording such instruction on such a report, shall transmit the same without
delay to the Magistrate.
Section 159: on receiving such a report, a Magistrate may direct an investigation or if he thinks fit,
conduct an inquiry or depute any subordinate Magistrate to hold a preliminary inquiry or to otherwise
dispose of the case as provided in the Code.
In a judgement titled SN Sharma versus Bipin Kumar Trivedi, AIR 1970 SC 786 Apex Court has held that
the Section is primarily meant to give to the Magistrate the power of directing an investigation in cases,
where the police decide not to investigate the case (i.e., where police submits negative final report)
under the proviso to Section 157(1), and it is in those cases that, if he thinks fit, he can choose the
second alternative of proceeding himself or deputing any subordinate Magistrate to hold a preliminary
inquiry.
Section 160: Any Police Officer making an investigation under this Chapter may, by order in writing,
require the attendance of any person who is acquainted with the facts and circumstances of the case.
Provided that no male (under the age of fifteen years or above the age of 65 years or a woman or
mentally or physically disabled person) shall be required to attend at any place other than the place in
which such male person or women resides.

32 Code of Criminal Procedure, 1973

(2) The State Government may make rules that reasonable expenses be given to the person who gives
attendance for investigation.
Statements recorded by police under Section 161, Cr.P.C. - signed by the person who has made it - Use
of statement

Section 161
Any Police Officer making an investigation, may examine orally any person who is acquainted with the
facts and circumstances of the case.
(2) Such person, shall be bound to answer truly all questions relating to the case put to him by such
officer except those questions which would have tendency to expose him to a criminal charge or to a
penalty or forfeiture.
(3) The Police Officer may reduce any statement made to him in the course of investigation. He shall
make a record of the statement of each person.
Provided that the statement made under this sub-section may also be recorded by audio video
electronic means.
Provided further that the statement of a woman against whom an offence is alleged to have been
committed or attempted to be committed, shall be recorded by a woman police officer or any woman
officer.
It is not obligatory on the part of the police officer to record any statement made to him. He may do
so if he feels it necessary. [Zahira Habibullah Sheikh versus State of Gujarat, 2004 (4) SCC 158]
Unexplained long delay on the part of the Investigation Officer in recording statements of material
witnesses during investigation would render the evidence of such witness unreliable. (Balkrishan
Swami versus State of Orissa, AIR 1971 SC 804).
The Statements made during police investigation are not substantive evidence. (Ramswaroop versus
State of Rajasthan, AIR 2004 SC 2943).
The Statements recorded under Section 161, Cr.P.C. can be used only for the purposes of contradiction.
(Abdul Gani versus Noor Hasan, 1998 Cr LJ 4370).
The non-examination of the investigation officer in all cases does not render the conviction vulnerable.
It is only when prejudice is shown, non-examination assumes importance (Shyama Naik versus State
of Orissa, 1995 Cr LJ 3204).
The contradictions and omissions in the previous statements are the best material to impeach the
testimony of a witness.

Section 162, Cr.P.C.

The statement reduced into writing shall not be signed by the person who made it. Such statements
shall not be issued for any purpose other than those stated in the section.
Provided that statement may be used by the accused or by the prosecution to contradict such witness
in the manner provided by Section 145 of the Indian 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.

Code of Criminal Procedure, 1973 33

 Recording confessions and statements by any Metropolitan Magistrate or Judicial Magistrate
Section 164, Cr.P.C.
Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case,
record any statement or confession made to him in the course of an investigation.
Provided that confession or statement may also be recorded by audio-video electronic means in the
presence of the advocate of the person accused of an offence.
Provided that confession shall not be recorded by a police officer to whom any power of a Magistrate
has been conferred.
(2) The Magistrate shall, before recording confession, explain to the person that he is not bound to
make a confession, if he does so, it may be used as evidence against him. The magistrate shall not
record confession unless he has reason to believe that it has been made voluntarily.
(3) If the person appears before the Magistrate and states that he is not willing to make a confession,
the Magistrate shall not authorise detention of such person in police custody.
(4) Confession shall be recorded in the manner as provided in Section 281 of Cr.P.C. and it shall be
signed by the person who has made the confession at the foot of the confession, the Magistrate shall
make a memorandum to the following effect:—
I have explained to (name) that he is not bound to make a confession and that, if does so, any confession
he makes may be used as evidence against him and I believe this confession was voluntarily made. It
was taken in my presence and hearing and was read over to the person making it and admitted by him
to be correct, and it contains a full and true account of the statement made by him.
Signed AB.
Magistrate
(5) Sub-section 5 provides that statement shall be recorded in such manner as provided for recording
evidence. Magistrate shall have power to administer an oath to the person whose statement is recorded.
(5A) If an offence has been committed against a woman, evidence shall also be recorded in the manner
as provided in sub-section (5) of Section 164, Cr.P.C.
Provided that if the person making the statement is temporarily or permanently mentally or physically
disabled, the Magistrate shall take assistance of an interpreter and it shall be video graphed. It shall
be considered as a statement instead of an examination in Chief (as specified in Section 137 of the
Evidence Act) but such person can be cross examined on such statement, without the need for
recording the same at the time of trial.
(6) The Magistrate recording a confession or statement under this section shall forward it to the
Magistrate by whom the case is to be inquired into or tried.
Confession is not evidence as defined under Section 3 of the Evidence Act (R Ravidran Nair versus
Supdt. of Police, CBI, 1981 Cr LJ 1424 (Ker).
It cannot be made the foundation of a conviction and can only be used in support of other evidence.
(Chandra Kant Chiman Lal Desai versus State of Gujarat, 1992 (1) Crimes 232 (235) (SC). Section 164
does not empower the Magistrate to record the statement to record the statement of witness on his
request, if the investigating agency has not asked for (Jogendra Nahak versus State of Orissa, AIR 1999
SC 2565; Mahbir versus State of Haryana, AIR 2001 SC 2503).

34 Code of Criminal Procedure, 1973

Medical examination of victim of rape
Section 164A, Cr.P.C.
(1) When investigation is going on for an offence conducted of rape or attempt to commit rape, medical
examination of that women shall be conduct by registered medical practitioner employed in a hospital
run by government or a local authority. In the absence of such a practitioner, by any other registered
medical practitioner such medical examination shall be conducted by a registered medical practitioner
with the consent of such women or with consent of a person who is competent to give consent on her
behalf. Such women shall be medically examined within twenty-four hours from the time of receiving
the information relating to the commission of such offence.
(2) The registered medical practitioner shall without delay, examine her person and prepare a report
giving the following particulars
(I) The name and address 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 women.
(V) General mental condition of women.
(VI) Other material particulars in reasonable detail.
(3) The report shall precisely state reasons for conclusion arrived at.
(4) The report shall specifically record that consent of the woman or of any other person on her behalf
has been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the
report.
(6) The registered medical practitioner shall forward report to the investigation officer and latter shall
forward it to the Magistrate under Section 173(a)(5) of Cr.P.C.
(7) Examination without consent shall not be construed as lawful.
Search by police officer as mentioned in Section 165 and Section 166 of Cr.P.C.
Section 165: Cr.P.C. Whenever an officer-in-charge of a police station who is investigating a case, has
reason to believe that anything which is required for investigation, may be found in any place within his
jurisdiction, he may after recording his belief in writing, search or cause search to be made.
(2) A police officer shall conduct a search, if practicable in person.
(3) If he is unable to conduct a search in person, he may require any of his subordinate officers to
search. If he is unable to conduct a search in person, reasons shall be mentioned in writing.
(4) The provision of general search as mentioned in Section 100, shall, as far as may apply to search
made under this section [Section 165]
(5) Copies of any record made shall be sent to the nearest Magistrate competent to take cognizance
of offence.
Section 166 - When the officer-in-charge of a police station may require another to issue a search
warrant.
(1) An officer-in-charge of a police station may require an officer-in-charge of another police station to
cause search to be made within the limits of his own station.

Code of Criminal Procedure, 1973 35

 (2) Such an officer shall make a search in accordance with the provision of Section 165 and shall
forward the thing to the officer who has requested for search.
(3) If an officer-in-charge of police station has reason to believe that delay may occasion, if request is
being made to another officer and it might result in concealment or destruction of evidence, it shall be
lawful to the officer-in-charge of a police station to make search in person within the limits of another
station.
(4) Any police officer making a search under sub-section (3), shall send notice of the search to the
officer-in-charge of another police within whose limits search is made.

Letter Rogatory [Section 166A, 166B Cr.P.C.]

Letter Rogatory is a formal communication in writing by a court in which an action is pending to a
foreign Court or Judge requesting the testimony of a witness residing within the jurisdiction of that
foreign court may be formally taken thereon under its direction and transmitted to the issuing court
making request for use in the pending legal contest or action. The request entirely depends upon the
comity of courts towards each other, that is to say, on the friendly recognition accorded by the court
of one nation to the laws and usages to the court of another [Union of India versus Chadha, AIR 1993
SC 1082].
The court is not required to give opportunity of hearing to the accused before issuing letter rogatory.
[ibid 1993 SC 1082]

When investigation cannot be completed in twenty-four hours

Section 167, Cr.P.C.
When any person is arrested, there are grounds for believing that the accusation and information is well
founded and investigation cannot be completed within 24 hours as mentioned in Section 57, Cr.P.C., the
officer-in-charge of a police station or investigating officer not below the rank of sub-inspector, shall
transmit the copies of entries in the diary and to the accused to the magistrate.
(2) The Magistrate to whom an accused in forwarded shall detain him in police custody, for such period
as he thinks fit, but not exceeding fifteen days in whole.
(a) Provided that the detention in judicial custody other than police custody may extend beyond the
period of fifteen days. But the total period shall not extend—
(I) ninety days, when investigation relates to an offence punishable with death, imprisonment for
a term of not less than ten years.
(II) sixty days, where investigation relates to any other offence.
On the expiry of the period of ninety days or sixty days [if investigation has not been completed
within ninety days or sixty days], the accused shall be released on bail and if he is ready to
furnish bail. It shall be considered as bail granted under Chapter XXXIII of Cr.P.C.
(b) The Magistrate shall not authorise detention of accused in police custody unless he is produced
before court in person for time. Further detention in judicial custody may be authorised if the
accused is produced before court in person or through the medium of electronic video linkage.
(c) Magistrate of the second class shall authorise detention in police custody if specially empowered
by the High Court.
If the judicial Magistrate is not available, the executive Magistrate may authorise detention, after
recording reasons in writing, for such a period as he thinks fit but total period shall not be more than
seven days.

36 Code of Criminal Procedure, 1973

(3) A Magistrate authorising detention in police custody shall record his reasons for doing so.
(4) Magistrate shall forward copy of his order [authorising detention in police custody] to Chief Judicial
Magistrate
(5) If in summon case, investigation is not concluded within a period of six months from the date on
which the accused was arrested, the magistrate shall make an order to stop further investigation
unless the investigation officer satisfy the magistrate that for special reason and in the interest of
justice the continuation of the investigation beyond the period of six months is necessary.
(6) The session Judge is satisfied that further investigation ought to be made, he may vacate order
made under sub-section 5 of Section 167, Cr.P.C.
A magistrate cannot send accused in police custody beyond a period of fifteen days and the same
would be invalid [Budh Singh versus State of Punjab, 2009 (9) SCC 266].
A person released on bail under this Section [167(2)(a)(ii) Cr.P.C.], the provisions of Chapter XXXIII are
made applicable, as if he is a person released under the provision of the said Chapter. [Directorate of
Enforcement versus Deepak Mahajan, AIR 1994 SC 1775]
While computing the total period of 60 days referred to in sub-clause (ii) of provision (a) to sub-section
(2) of Section 167, the period of detention under Section 57 [which must not be more than twenty-four
hours] has to be excluded. [Jai Singh versus State of Haryana, 1980 Cr LJ 1229 [Ps910]

Release an accused person

Section 169, Cr.P.C.
This section provides that if, upon investigation, it appears to the officer-in-charge of a police station
that there is no evidence against particular accused he has to release him after taking a bond from him
that he would appear before Magistrate when required,
In fact the investigation officer is not even supposed to apply to a Magistrate under Section 169 for
discharge. The word release used in Section 169 is released due to the fact that there is no sufficient
evidence to proceed against the accused. The investigation officer is to obtain a bond with or without
surety at the time of release [Abdul Razak Abdul Gani versus State of Maharashtra, 2008 Cri LJ 133
(134)]
If at the stage of grant or refusal of anticipatory bail certain aspects of the case are considered but if
at later stage, investigating officer files report under Section 169, Cr.P.C. Such a step would not amount
to interference with the administration of justice. [Satish Sharma versus State of Gujarat, AIR 2003 SC
648: 2003 SCC (Cri) 1442]

Police station can send case to the Magistrate

Section 170(1), Cr.P.C.
If upon investigation it appears to the officer-in-charge of a police station that there is sufficient
evidence in the case, he shall forward the accused before the Magistrate. If the offence is bailable, take
security from him for his appearance before magistrate.
(2) When the officer-in-charge of a police station forwarded an accused before a magistrate or took
security from him, he shall also send to Magistrate any weapon or other article. He shall also require
the complainant and other witnesses to execute a bond to appear before a magistrate for evidence.
One of its copies be delivered to the person who has executed it.

Code of Criminal Procedure, 1973 37

 Complainant or witness shall not be required to accompany a police officer
Section 171, Cr.P.C.
Complainant or witness on his way to any court shall not be required to accompany a police officer.
They shall not be subjected to unnecessary restraint or inconvenience, complainants, or witnesses can
be asked to execute a bond, but they cannot be asked to give any security for appearance before court.
If any complainant or witness refuses to attend court or to execute a bond as directed in Section 170,
the officer-in-charge of a police station may forward him in custody to the magistrate, who may detain
him in custody until he executes such bond, or until the hearing of the case is completed.

Case diary
Section 172, Cr.P.C. Every police officer making an investigation shall enter into a diary the day to day
proceeding which he has carried out. The time when information reached him. The time when he
began or closed his investigation. The place or places visited by him. The circumstances of the case
ascertained by him, and a statement of the circumstances ascertained through his investigation. The
statement of witness recorded under Section 161, Cr.P.C.
Case diary shall be a volume and it shall be duly paginated. Such case diaries, not to be used as
evidence in the case, but to aid it in such inquiry or trial.
The accused or his agent shall not be entitled to call for such a case diary and shall also not be entitled
to see the diary during the course of enquiry or trial. The diaries can be used for refreshing memory
by investigating officers. It can also be used for the purpose of contradicting any police officer as per
provision under Section 161 of Cr.P.C. or Section 145 of the Indian Evidence Act.
A court is within its competence to read a police diary as an aid and that can be done to satisfy its
conscience in appreciating the legal evidence avoidable on record but not beyond. It cannot be used as
evidence against the interest of the accused for upholding a conviction on any charge. [Nagine Khatoon
versus State of Bihar, 2003 (3) Crimes 173 (178)]
The investigation officer is an important witness. Where there is no contradiction in the statement
of the witnesses recorded in the court with reference to their statement recorded under Section 161,
Cr.P.C., the non-examination of the investigating officer was held not fatal. [Hakru versus State of
Rajasthan, 1994 Cr LJ 2141 (Raj DB)]
It is ordinarily difficult to fabricate false entries in the general diary as entries are made in the general
diary about all the events that take place in the police station in chronological order. [Sadhu Singh
versus State of U.P., AIR 1978 SC 1506: 1979 SCC (Cri) 49]

Charge-sheet or completion report or final report

Section 173, Cr.P.C.
Every investigation shall be completed without unnecessary delay. The investigation in relation to
offence under Section 376, Section 376A, Section 376 AB, Section 376B, Section 376C, Section 376D,
Section 376 DA, Section 376 DB or Section 376(E), IPC shall be completed within two months from the
date on which information is recorded by the officer-in-charge of the police station.
After completion of investigation, a report shall be forwarded to the magistrate empowered to take
cognizance of the offence. The final report or charge-sheet shall contain—
(a) The name of the parties
(b) The nature of the information

38 Code of Criminal Procedure, 1973

(c) Name of witnesses of the case
(d) Whether any offence appears to have been committed; if so by whom
(e) Whether accused was arrested
(f) Whether he has been released on bond, [i.e., with or without sureties]
(g) Whether he has been forwarded into custody under Section 170, Cr.P.C.
(h) Whether report of medical examination of a woman has been attached, where investigation relates
to an offence under 376, 376A, Section 376 AB, Section 376B, Section 376C, Section 376D, Section
376 DA, Section 376 DB or Section 376E of Indian Penal Code.
(3) Where a superior police officer has been appointed under Section 158, the report shall be submitted
through that officer.
(4) Whenever it appears from a report that the accused has been released on bond, the magistrate
shall make order for the discharge of the bond.
(5) Where a report has been submitted under Section 170, Cr.P.C. the police officer shall forward along
with report all documents and statements recorded under Section 161, Cr.P.C.
(6) If the police officer is of opinion that any statement is not relevant or disclosure to the accused is
not essential in the interest of justice or in public interest, he shall request the magistrate to exclude
that part and reasons be mentioned for making such request.
(7) Where the police officer finds it convenient, he may furnish to the accused copies of all or any of
the documents which have been attached along with the final report.

Section 173(8), Cr.P.C.

The police officer may make further investigations after submission of the charge-sheet. He would not
be precluded from doing further investigation, If the officer-in-charge of a police station obtains further-
evidence, oral or documentary, he shall forward to the magistrate a further report i.e., supplementary
charge-sheet.
A magistrate in exercise of its power under Section 173, Cr.P.C. is competent to disagree with the final
report and direct further investigation in a matter. But the existence of valid and good reasons is a
prerequisite for issuance of such a direction. [Gyan Prakash Sharma versus CBI Chandigarh, 2004 Cr
LJ 3821 (P&H)]
The police officer can file a supplementary charge-sheet on the basis of such further investigation.
[Ladu Devi versus State of Rajasthan, 2005 Cr LJ 543 (Raj)]

Inquest report
Section 174, Cr.P.C.
When an officer-in-charge of a police station receive information that a person has committed suicide
or has been killed by another or by animal, or by machinery or by accident, under circumstances raising
a reasonable suspicious, he shall immediately inform to executive magistrate empowered to hold
inquests, unless otherwise directed by State Government or by District Magistrate, shall proceed to
the place, and in the presence of two inhabitants of the locality prepare an inquest report, draw up a
report of the apparent cause of death, describing wound, fractures, bruises etc. or by what weapon or
instrument appears to have inflicted.
(4) The report shall be forwarded to the District Magistrate or sub divisional magistrate.

Code of Criminal Procedure, 1973 39

 (5) When the case involve suicide by a woman or death of a woman within seven years of her marriage
and circumstances are creating a reasonable suspicious. Any relative of the woman has made a request
on that behalf. If there is any doubt regarding cause of death the police officer considers it expedient
to do so. He shall send the body for the medical examination.
Inquest report and postmortem report cannot be termed to be basic or substantive evidence and any
discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance
which warrant a benefit to the accused and resultant dismissal of the prosecution case. [Munshi
Prasad versus State of Bihar, AIR 2001 SC 3031]

JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

Jurisdiction of the criminal courts in inquiries and trials
Section 177 of Cr.P.C. deals with general rule which is as under:—
“Every offence shall ordinarily be inquired into and trial by a court within whose local jurisdiction it
was committed.
Section 178 to 185 are an exception to the general rule that offence shall be tried by a court within
whose local jurisdiction it was committed.
Section 179 of Cr.P.C. provides four contingencies which are as under—
(I) When it is uncertain in which of several local areas an offence is committed.
(II) Where an offence is committed partly in one local area and partly in another.
(III) Where an offence is continuing one and continues to be committed in more local areas than one.
(IV) Where an offence consists of several acts done in different local areas.
Thus, in a conflict between different areas, the offence may be inquired into by a court having jurisdiction
over any of such local areas.
Section 179, Cr.P.C. [offence triable where act is done, or consequence ensues). It contemplates two
courts having jurisdiction one is the court within whose local jurisdiction the act has been done and
the other is the court whose local jurisdiction the consequence has ensued.
Where an alleged defamatory statement was made by the accused in a press conference at Chandigarh
and the statement was published in a newspaper published and circulated in Bombay, it was held
that consequence was completed at Bombay and therefore both the courts at Bombay as well as
Chandigarh would have jurisdiction to entertain the complaint. [Subramaniam Swamy versus PS Pai,
1984 Cri LJ 1329 (Bom)]
Section 180 provides for a place of trial where the act committed is an offence by reason of its relation
to any other act which is also an offence.
A charge of abetment may be inquired into or tried either by the court within the local limits of whose
jurisdiction the abetment was committed or by the court within whose local limits the offence abetted
was committed. Manufacturer of a substandard fertiliser may be prosecuted at the place of marketing
whose manufacturing activity is at a different place under the Essential Commodities Act, 1955. [State
of Punjab versus Nohar Chand, AIR 1984 SC 1492]

Section 181
(1) Any offence of being a thug, murder by thug, dacoity, dacoity with murder, belonging to a gang of
dacoits or escaping from custody may be inquired into or tried by a court

40 Code of Criminal Procedure, 1973

 (i) Within whose local jurisdiction the offence was committed.
(ii) or the accused person is found.
(2) Any offence of kidnapping or abduction may be inquired into or tried by a court.
(i) Within whose local jurisdiction kidnapping or abduction has taken place.
(ii) The abducted or kidnapped person was conveyed or concealed or detained.
(3) Any offence of theft extortion or robbery may be inquired into or tried by a court
(i) Within whose local jurisdiction the offence was committed.
(ii) or the place where the stolen property was possessed by the person who has committed it.
(iii) or place where any person has received or retained such property knowing or having reason to
believe it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried
by a court.
(a) Within whose local jurisdiction the offence was committed.
(b) or any part of property which is subject matter of the offence was received or retained.
(c) or place where property was required to be returned or accounted for by the accused person.
(5) Any offence of possession of stolen property may be inquired into or tried by a court.
(a) Within whose local jurisdiction the offence was committed.
(b) or the stolen property was possessed by any person who received or retained it knowing or
having reason to believe it to be stolen property.

Section 182
Any offence of cheating, if deception is practised by means of letters or telecommunication messages,
may be inquired into or tried by a court.
(a) Within whose local jurisdiction such letters or messages were sent or were received. Any offence
of cheating and dishonestly inducing delivery of property may be inquired into or tried by a court—
(a) within whose local jurisdiction the property was delivered by the person deceived or was
received by the accused person.
(2) Any offence of bigamy [Section 494 or Section 495, IPC] may be inquired into or tried by a court.
(a) within whose local jurisdiction the offence was committed.
(b) or the offender has last resided with his or her spouse with his or her spouse by the first marriage.
(c) or the wife by the first marriage has taken up permanent residence after the commission of the
offence.
Section 183. Offence committed on journey or voyage – Where an offence is committed by or against
any person or thing, during journey or voyage, the same may be inquired into or tried by a court through
or into whose jurisdiction that person or thing passed in the course of such journey or voyage.
Section 184. Place of trial for offence triable together – This section provides that—
(a) Where a person commits several offences for which he may be charged with and tried at one trial
[Section 219 to 221]
(b) Where several persons commit offence or offences for which they may be charged with and tried
together at one trial [Section 223, Cr.P.C.].

Code of Criminal Procedure, 1973 41

 The offence may be inquired into or tried by any court competent to inquire into or try any of the
offences.

Section 185
This section gives power to the State Government to order cases to be tried in different session
divisions.
Provided that such direction of State Government is not repugnant to any direction previously issued
by the High Court or Supreme Court. [Section 407, Section 408, Cr.P.C.]

High Court to decide the district where inquiry or trial shall take place
Section 186
Where two or more courts have taken cognizance of the same offence and a question arises as to
which of them ought to inquire into or try that offence, the question shall be decided—
(a) If the courts are subordinate to the same High Court, by that High Court.
(b) If the courts are not subordinate to the same High Court, by the High Court within the local limits
of whose jurisdiction proceedings were first commenced. And thereupon all other proceedings in
respect of that offence shall be discontinued.

Power of a magistrate to issue summons or warrant for offence committed beyond local
jurisdiction
Section 187
When a magistrate of the first class has reason to believe that any person within his local jurisdiction
has committed an offence out of his local jurisdiction [whether within or outside India] he may compel
that person to make an appearance before court within whose local jurisdiction offence was committed.
[In such manner as provided for appearance before him] if the offence is not punishable with death
or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the
magistrate acting under this section, take a bond with or without sureties for his appearance the
magistrate having jurisdiction.
(2) Where the magistrate acting under this section is unable to decide as to which magistrate has
jurisdiction regarding offence, the case shall be reported to the High Court for order.

Jurisdiction of the court when offence is committed outside India

Section 188 enumerates the provision for extra-territorial over Indian citizens and also of non-citizen
Section 4 of the IPC, gives extra-territorial jurisdiction in respect of acts committed outside India by
Indian citizens.
Section 188 provides—
When an offence is committed outside India—
(a) by Indian citizen, on high seas or elsewhere or
(b) by a non-citizen [any person] on any ship or aircraft in India.
The offence may be inquired into and tried by a court within whose local jurisdiction the accused was
found.
Where the offence is committed without and beyond India, then previous sanction of the Central
Government becomes necessary for inquiry or trial of such offence.

42 Code of Criminal Procedure, 1973

The accused were charged under Section 407 IPC for committing criminal breach of trust in respect of
certain property entrusted to them as carriers. They were all citizens of India. The offence was alleged
to have been committed in Portuguese territory, and they were found in a place in India. It held that
the accused could be tried in the place where they were found. [Queen Emperor versus Daya Bhima,
(1888) 13 Bom 147]

CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

Magistrate can take cognizance of offence
Section 190, Cr.P.C.
(1) Any magistrate of the first class or any magistrate of second class specially empowered may take
cognizance under the following circumstance—
(a) upon receiving a complaint.
(b) upon a police report of such facts.
(c) upon information, received from any person other than a police officer or upon his own knowledge,
that such offence has been committed.
(2) The chief judicial magistrate may empower any magistrate of the second class to take cognizance
under sub-section (1) of Section 190, Cr.P.C.
The magistrate is not bound by the conclusion arrived at by the police. Magistrate can take cognizance
against accused persons, even though not charge-sheeted by the police. [Union of India versus Prakash
P Hinduja, AIR 2003 SC 2612]
In Jayant versus State of Madhya Pradesh, 2020 SCC OnLine SC 989, decided on 03-12-2020, Criminal
Appeal No. 826/2020. The Supreme Court has held that:
(i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct
the concerned In charge/SHO of the police station to lodge/register crime case/FIR even for the
offences under the MMDR Act, 1957 (Mines and Minerals (Development and Regulation) Act) and
the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not
be attracted;
(ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate
takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders
issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;
(iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having
jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint
that may be filed by the authorised officer for taking cognizance in respect of violation of various
provisions of the MMDR Act and Rules made thereunder; and
(iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder,
when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned
In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation
of various provisions of the Act and Rules made thereunder and thereafter after investigation the
concerned Incharge of the police station/investigating officer submits a report, the same can be
sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in
Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint
before the learned Magistrate along with the report submitted by the concerned investigating
officer and thereafter it will be open for the learned Magistrate to take cognizance after following
due procedure, issue process/summons in respect of the violations of the various provisions of the

Code of Criminal Procedure, 1973 43

 MMDR Act and Rules made there under and at that stage it can be said that cognizance has been
taken by the learned Magistrate.
(v) in a case where the violator is permitted to compound the offences on payment of penalty as per
sub-section 1 of Section 23A, considering sub-section 2 of Section 23A of the MMDR Act, there
shall not be any proceedings or further proceedings against the offender in respect of the offences
punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar
under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the
IPC, such as, Sections 379 and 414, IPC and the same shall be proceeded with further.

Section 191 and 192, Cr.P.C.

Section 191, Cr.P.C.
When a magistrate takes cognizance of an offence, the accused shall be informed, before evidence
is taken, that he is entitled to have the case be inquired into or tried by another magistrate, and the
accused objects to the proceedings, the case shall be transferred to such magistrate as specified by
the Chief Judicial Magistrate.
Section 192, Cr.P.C.
Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry
or trial to any competent magistrate subordinate to him.
(2) A magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after
taking cognizance of an offence, hand over the case to another competent magistrate as specified by
the Chief Judicial Magistrate.

Courts of sessions can take cognizance of an offence

Section 193, Cr.P.C.
Court of session shall not take cognizance of an offence except under the following circumstances.
(1) When the court of session is expressly empowered under this Code.
(2) By any other law for the time being in force.
(3) When the case has been committed to it by a magistrate under this Code.

Section 194, Cr.P.C.

An additional session judge or assistant session judge shall try such cases as the session judge of the
division may be general or special order, take over for him for trial or as the High Court may, by special
order, direct him to try.

Exception to the general rule

Section 195 to 199 are an exception to the general rule that any person, having knowledge of the
commission of an offence, may set the law in motion by a complaint, even though he is not personally
interested or affected by the offence.

Section 195, Cr.P.C.

(1) No court shall take cognizance of an offence
(a) (I) punishable under Section 172 to 188, IPC or of abetment, or attempt to commit, such offence or
any criminal conspiracy to commit such offence.
Expect a complaint in writing by the public servant concerned or by some subordinate officer to
that public servant.

44 Code of Criminal Procedure, 1973

(b) Of an offence punishable under Section 193 to 196, 199, 200, 205 to 211 and 228, IPC when such
offence is alleged to have been committed in, ot in relation to, any proceeding in any court
(ii) of any offence punishable under Section 463, 471, 475 and 476, IPC, when such offence is
alleged to have been committed in respect of a document produced or given in evidence in any
court or
(iii) any criminal conspiracy, attempt or abetment is committed for any offence as mentioned in
sub-clause (i) or sub-clause (ii) of (b) except on a complaint in writing of that court or by such
officer of the court as that court may authorise in writing in this behalf or of some other court
to which that court is subordinate.
(2) When a complaint is made by a public servant, any higher authority may order the withdrawal of
the complaint and send a copy of such order to court and upon its receipt by the court, no further
proceedings shall be taken on the complaint.
(3) Court means civil, revenue or criminal court and also includes a tribunal.
The bar contained in Section 195(1)(b) is not applicable to a case where forgery of the document was
committed before the document was produced in a court. (Sachida Nand Singh versus State of Bihar,
AIR 1998 SC 1121).

Prosecution for offence against State Section 196, Cr.P.C.

Section 196(1), No Court shall take cognizance of
(a) any offence punishable under Chapter VI or under Section 153A, 295A, sub-section (1) of Section
505, IPC.
(b) A criminal conspiracy to commit such an offence.
(c) of abetment of such offence except with the previous Section of the Central Government or State
Government (Section 108, IPC)
(1A) No court shall take cognizance of
(a) any offence punishable under Section 153B or sub-section (2) or sub-section (3) of Section 505,
IPC.
(b) A criminal conspiracy to commit such offence except with the previous sanction of the Central
Government or the State Government or District Magistrate.
(2) No court shall take cognizance of an offence of any criminal conspiracy (Section 120B, IPC), other
than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or upwards, unless State Government or the District
Magistrate has given consent in writing for initiation of proceedings.
Provide that where criminal conspiracy is one to which the provision of Section 195 applies, no such
consent shall be necessary.
(3) The Central Government or the State Government, may before according to consent or State
Government or District Magistrate before giving consent, order a preliminary investigation by a police
officer not below the rank of inspector, such police officer shall have powers referred to in sub-section
(3) of Section 155, Cr.P.C.

Section 197, Cr.P.C.: Prosecution of judges and public servants

Where any person who is or was a judge or magistrate or public servant not removable from his
office save by or with the sanction of the government, is accused of an offence alleged to have
been committed while acting or purporting to act in the discharge of his official duty, no court shall

Code of Criminal Procedure, 1973 45

 take cognizance of an offence except with the previous sanction of the Central Government or State
Government, as the case may be.
No sanction shall be required if alleged offence has been committed under Section 166A, 166B, Section
354, 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section
376A, Section 376 AB, Section 376C, Section 376D, Section 376 DA, Section 376 DB, Section 509 of IPC.
No court shall take cognizance of any offence alleged to have been committed by any member of the
armed forces of the union while acting or purporting to act in the discharge of his official duty, except
with the previous sanction of the Central Government.
Sanction is necessary if the acts complained of public servant are so integrally connected with the
duties attached to the office as to be inseparable from them (NK Ogle versus Sannadas, AIR 1999 SC
1437)
Where death of the deceased is caused by the accused who are police officials by use of third degree
method and torture, the act of the accused is not in the discharge of his official duty. Sanction under
Section 197 is not required [Surjet Singh versus Jit Singh, 1998 Cr LJ 3562 [Ps 11]: AIR 1979 SC 1841].

Prosecution for offences against marriage. Section 198

No Court shall take cognizance of an offence of an offence punishable under Chapter XX of the IPC,
except upon a complaint made by an aggrieved person.

Provided that
(a) If such aggrieved person is a minor, or a lunatic or an idiot or is from sickness or infirmity unable
to make complainant, or is a woman, who according to custom, ought not to be compelled to
appear in public, some other person may, with the leave of the court, make a complainant his or
her behalf.
(b) If the aggrieved person is a husband, who is employed in the armed forces of the union, precluded
from obtaining leave, some other authorised person may make a complaint on behalf of the
husband. Authority shall be signed and attested by the husband and shall also be countersigned
by his commanding officer. It shall also be accompanied by a certificate signed by the commanding
officer that leave cannot be granted. Such authority and certificate shall be presumed to be
genuine unless the contrary is proved.
(c) If the aggrieved person is a wife, complaint may be made on her behalf by her father, mother,
brother, sister, son or daughter or by her father’s or mother’s brother or sister or with the leave of
the court, by any other person related to her by blood, marriage or adoption.
(d) No court shall take cognizance of an offence under Section 376, IPC, where such offence consists
of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if
more than one year has elapsed from the date of the commission of the offence.

Section 198A
No court shall take cognizance of a punishable under Section 498A, IPC, except upon a police report or
complaint by aggrieved person or by mother, father, brother, sister or with the leave of court any other
person related to her by blood, marriage or adoption.

Section 198B
No court shall take cognizance of an offence punishable under Section 376B of IPC, except upon prima
facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made
by the wife against the husband.

46 Code of Criminal Procedure, 1973

Prosecution for defamation
Section 199, Cr.P.C. No court shall take cognizance of an offence punishable under Chapter XXI of IPC,
except upon a complaint made by an aggrieved person.
Provided that if aggrieved person is a minor, lunatic, idiot, insictic or infirm, who is unable to make
complaint or a woman who, according to local custom, ought not to be appear in public, some other
person may, with the leave of the court, make a complaint on his or her behalf.
(2) When offence under Chapter XXI of IPC is alleged to have been committed against the President
of India Vice-President, Governor, Administrator of a Union territory or a Minister of the union or any
other public servant in respect of his conduct in the discharge of his public functions a court of session
may be take cognizance of such offence, without the case being committed to it, upon a complaint in
writing made by public prosecutor.
(3) Every complaint shall set forth the facts which constituted the offence.
(4) No complaint shall be made by a public prosecutor except with the previous sanction of the Central
Government, State Government, as the case may be.
(5) Session court shall not take cognizance of a complaint filed by a public prosecutor after expiry of
the period of six months.

COMPLAINTS TO MAGISTRATE
Procedure of complaint
Section 200, Cr.P.C. (Examination of complainant)
A complainant in writing is made to a magistrate. Any person, whether he is aggrieved or not, can file
a complaint. The exception to this principle is provided in Section 195 to 199, Cr.P.C. Before taking
cognizance of an offence, a magistrate shall examine upon oath the complaint and the witnesses
present, if any. Substance of such examination [statement] shall be reduced into writing and shall be
signed by the complainant and the witnesses and also by the magistrate.
Magistrate need not examine complaints and witnesses in the following two cases.
(a) If a complaint has been made in writing by a public servant in the discharge of his official duty.
(b) If the magistrate makes over the case for inquiry or trial to another magistrate under Section 192.
But if the case has been made over after examining complaints and other witnesses, the latter
magistrate need not to re-examine them.

Section 201 – Return of complaint

If the magistrate is not competent to take cognizance of a complaint he shall return it with endorsement
that it be presented to the proper court.

Section 202, Cr.P.C. – Postponement of issue of process

Any magistrate on receiving a complaint of an offence of which he is authorised to take cognizance,
may if he thinks fit, postpone the issue of process to issue summons against accused and either
inquire into the case himself or direct an investigation to be made by a police officer or by any other
person as he thinks fit.
No case be sent for investigation under Section 202, if the offence is exclusively triable by session
court.
In an inquiry under Section 202(1), Cr.P.C. Magistrate takes evidence from witnesses on oath.

Code of Criminal Procedure, 1973 47

 Provides that if offence is exclusively triable by session court, magistrate shall call upon the complaint
to produce all his witnesses and examine them on oath.

Section 203, Cr.P.C. – Dismissal of complaint

If after considering the statement of the complainant and witnesses and the result of the inquiry or
investigation under Section 202, Cr.P.C., the magistrate is of the opinion that there is no sufficient
ground for proceeding, he shall dismiss the complaint after recording his reasons.

Complaint to
magistrate
under Section 190,
Cr.P.C.

May send to police May make enquiry

for investigation under Section 200,
under Section 156(3), Cr.P.C. i.e., record
Cr.P.C. evidence of complaint
and other witness

May postpone issue

of summon

May enquiry under Or sent to police for investigation

Section 202, Cr.P.C. under Section 202, Cr.P.C. if a case is
tribal session court to commit sent
complaint to police

If no case dismissal
complaint under If case makes out
Section 203, Cr.P.C. issue summon to
accused person

If Summon case A warrant case

proceed with case proceed with case
as summon case instituted otherwise
under Section 251 to than on police
255, Cr.P.C. Section 244 to 247,
Cr.P.C.

48 Code of Criminal Procedure, 1973

COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATE
Cognizance of an offence on a complaint
Section 204, Cr.P.C.
If a magistrate has taken cognizance of an offence and it appears that there is sufficient ground for
proceeding, the magistrate shall issue summons in a summons case. In a warrant case, a magistrate
may issue a warrant or summons as he thinks fit.
(2) No warrant or summons shall be issued unless a list of prosecution witnesses has been filed.
(3) Summons or warrants shall be accompanied by a copy of complaint.
(4) No process (summons) shall be issued unless requisite process fee is paid within reasonable time.
(5) Nothing in this Section shall be deemed to affect the provision of Section 87, Cr.P.C.
Personal appearance of accused may be dispensed with

Section 205, Cr.P.C.

When a magistrate issues a summons, he may dispense with personal attendance of the accused and
permit him to appear by his pleader.
During the course of inquiry or trial, the magistrate may, in his discretion, at any stage of the proceedings,
direct the personal attendance of the accused, if necessary.

Special summons in petty offence

Section 206, Cr.P.C.
If a magistrate taking cognizance of a petty offence which may be tried summarily under Section 260,
the magistrate shall issue summons to accused requiring him to appear in person or through pleader
or direct him that if he wants to plead guilty to the charge, to transmit before the court, the said plea
in writing and the amount of fine specified in summons by post or by messenger. It should also be
mentioned in special summons that he may plead guilty through a plea. In such a case, the pleader
shall be authorised in writing and the pleader may plead guilty on his behalf and the accused would
also pay a fine through such a plea.
Provided that the amount of the fine specified in the special summons shall not exceed one thousand
rupees.
(2) Petty offence means punishable only with a fine not exceeding one thousand rupees. Petty offence
does not include offence punishable under Motor Vehicles Act, 1988.
(3) The State Government may, by notification, specially empower any magistrate to issue special
summons in relation to any offence compoundable under Section 320, Cr.P.C. or any offence punishable
for a term not exceeding three months, or with fine or with both.

Document to be given to accused by magistrate after filing of police report

After filing of police report [under Section 173(1), Cr.P.C.] the magistrate shall without delay furnish to
the accused, free of cost, the copy of the following documents—
(1) Police report.
(2) Copy of first information report [under Section 154, Cr.P.C.]
(3) Statement and confessions recorded under Section 164, Cr.P.C.

Code of Criminal Procedure, 1973 49

 (4) The statement recorded under Section 164, Cr.P.C. Copies of those statements should not be
provided if the police have made a request that the statement is not relevant to the subject
or disclosure is not essential in the interest of justice. Provided further that if any document is
voluminous, the magistrate shall direct that the accused will only be allowed to inspect it either
personally or through a pleader in court.
Section 14 of the Official Secrets Act, 1923 does not deprive the right of the accused to get copies
of statements of witnesses and documents. [Supdt. S. Remembrance, Legal Affairs versus Satyen
Bhommick, AIR 1981 SC 917].

Copies of statements and documents to be supplied to accused

Section 208, Cr.P.C.
Where magistrate has issued process under Section 204, Cr.P.C. in a complaint case and the offence
is one which is exclusively triable by the court of session, the magistrate shall without delay furnish to
the accused, the following documents.
(1) the statement recorded under Section 200 or under Section 202, Cr.P.C.
(2) statement and confessions recorded under Section 161 or Section 164, Cr.P.C.
(3) copy of any documents produced before court.
Provided that if the document is voluminous, the magistrate may direct that the accused will only be
allowed to inspect it either personally or through a pleader in court.
Case committed to session court
Section 209, Cr.P.C.
In a complaint case or a case instituted on a police report, the accused appears or is brought before
the magistrate and the case is exclusively triable by the session court, magistrate shall.
(a) after supplying a copy of documents and reports under Section 207 or 208, Cr.P.C., as the case
may be committed to the session court. Magistrate shall remand the accused to custody until
commitment has been made. But if bail has been granted, no remand would be given.
(b) the magistrate shall send the record of the case, document and articles, if any, to the session
court. Notice be given to the public prosecutor that the case has been committed to session court.

Investigation pending regarding the same offence

Section 210, Cr.P.C.
If a complaint is made before a magistrate and it appears during the course of inquiry or trial that police
investigation is also in progress relating to the same offence. Magistrate shall stop the proceedings of
the inquiry or trial and call a report from the police officer conducting the investigation.
(2) if after an investigation report has been submitted under Section 173 and magistrate has taken
cognizance of the offence against a person who is an accused in the complaint case, magistrate shall
club the complaint along-with police report and case shall be proceeded with as both cases were
instituted on a police report.
(3) if the police report does not relate to any accused in the complaint case or if the magistrate does
not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial,
which was stayed by him, in accordance with the provision of the Code.

50 Code of Criminal Procedure, 1973

THE CHARGE
Contents of charge
Section 211, Cr.P.C.
Charge shall state the offence with which the accused is charged.
(2) If law gives it any specific name, the offence may be charged by that name only.
(3) If the law which creates offence does not give it any specific name the definition of the offence
must be stated in the charge.
(4) The law and Section must be mentioned in the charge.
(5) If a charge is framed, it means every legal condition to constitute the offence has been fulfilled in
the particular case.
(6) The charge shall be written in the language of the court.
(7) Where a previous conviction is required to be proved for the purpose of enhancing the punishment,
it should be entered in the charge. If the previous conviction is denied, the prosecution has to prove
that the accused person was previously convicted.
Illustration
A is charged under Section 326, IPC, with voluntarily causing grievous hurt to B by means of an
instrument for shooting. This is equivalent to a statement that the case was not provided for by
Section 335 of IPC, and the general exceptions did not apply to it.

Section 212
(1) Charge shall contain particulars as to time and place of the alleged offence.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money
or movable property, it shall be sufficient to specify the gross sum and the dates between which the
offence was committed the exact date is not required to be mentioned.
Provided that the time included between the first and last of such date shall not exceed one year.

Section 213
When the nature of the case is such that the particular mentioned in Section 211 and 212 of Cr.P.C.
are not sufficient to give accused notice of the matter with which he is charged, the charge shall also
contain the manner in which the alleged offence was committed.
Illustration
A is accused of cheating B at a given time and place. The charge must set out the manner in which A
cheated B.

Error or omission in framing charge

Section 215, Cr.P.C.

Effect of errors
If there is an error or omission in stating the offence or as to particular required to be stated in charge,
shall not be regarded at any stage of the case as material, unless the accused has in fact misled by
such error or omission, and it has occasioned a failure of justice.
Section 216, Cr.P.C. – Alteration and addition of charge- Any court may alter or add to any charge at any
time before judgement is pronounced.

Code of Criminal Procedure, 1973 51

 Such alteration and addition shall be read over and explained to the accused.
If such alteration or addition would not prejudice the accused in his defence or to the prosecution in
the conduct of the case, the court shall proceed with the trial as if the altered or added charge has
been the original charge.
If in the opinion of the court such alteration or addition would prejudice the accused in his defence
or to the prosecution in the conduct of the case, the court directs a new trial or adjourns the trial for
such period as may be necessary.
If previous sanction is required to the added or altered charge the case shall not be proceeded with
until such sanction is obtained.

Section 217 – Recalling of witnesses when charge altered

After alteration and addition of charge, prosecution and accused shall be allowed to recall or re-
summon and examine any witnesses with reference to such alteration or addition unless the court,
for reasons to be recorded in writing, considers that prosecution or accused, desires to recall or re-
examine such witnesses for the purpose of vexation or delay or for defeating the ends of justice.
Any further witnesses shall also be allowed to call whom the court thinks to be material.
Every distinct offence there shall be separate charge - exception
Section 218, Cr.P.C. – For every distinct offence, there shall be a separate charge, and every such charge
shall be tried separately.
Provided that if the accused makes an application in writing, the magistrate may try together all or any
number of the charges framed against such person, if the magistrate is of the opinion that such person
is not likely to be prejudiced.
The cross-case should be simultaneously decided by the same judgement, and judgement should be
delivered simultaneously the same day after the completion of both the cases to avoid conflicting
findings, but each case should be decided on the basis of the evidence on the record of the case and
not on the evidence of the cross case.
Kewal Krishan versus Suraj Bhan, AIR 1980 SC 1780.
Explanation - Section 219, Cr.P.C. Offence of the same kind committed in the course of one year can
be tried at one trial though offence may have been committed against different persons, but three
offences of the same year can be joined.
Offences not punishable under the same Section of the IPC or any special or local law are not of the
same kind.
Proviso to Section 219, Cr.P.C. provides that Section 379 and Section 380, IPC refer to theft and theft
in a building and are deemed to be offences of the same kind.

Section 220, Cr.P.C.

Section 220 allows a number of offences, even when exceeding three and extending over a period of
more than twelve months, to be tried at one trial if offences are committed in one series of acts so
connected together as to form the same transaction.
Illustration
A with six others, commits the offences of rioting, grievous hurt and assaulting a public servant
endeavouring in the discharge of his as such to suppress the riot. A may be separately charged and
tried at the same time for offences under Section 147, 325 and 152, IPC.

52 Code of Criminal Procedure, 1973

Section 220(2) - Criminal breach of trust or dishonest misappropriation may, in many cases, be
accompanied with falsification of accounts, committed for the purpose of facilitating or concealing the
commission of that offence, he may be tried at one trial for every such offence.
(3) Where the same facts constitute different offences, the accused may be charged with, and tried at
one trial for, each of such offences.
Illustration
A expose her child with the knowledge that she is thereby likely to cause his death. The child dies as
a consequence of such exposure. A may be separately charged with and convicted of offence under
Section 317 and 304 of IPC.
(4) If several acts, each constituting an offence and when combined constitute a different offence, the
person may be charged with and tried at one trial.

Section 221, Cr.P.C.

Where it is doubtful what offence has been committed—
(1) If a single act or series of acts is of such a nature that it is doubtful what offence has been
committed, charge can be framed for all offences or alternative charge can be framed.
(2) At the trial if it is established that the accused has committed an offence, he may be convicted
though he may not have been charged with the offence.
Illustration
A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of
trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and
cheating or he may be charged with having committed theft, or receiving stolen property or criminal
breach of trust or cheating.
(b) In the case mentioned above. A is only charged with theft. It appears that he committed the offence
of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of
trust or of receiving stolen goods (as the case may be), though he was not charged with such offence.

Section 222, Cr.P.C.

(1) When a person is charged with an offence which consists of several particulars, a combination of
some particulars constitutes a minor offence and having been proved, but the remaining particulars
have not been proved, he may be convicted of minor offence, though he was not charged with it.
(2) When a person is charged with an offence of a fact which, having been proved, reduces it to a
minor offence, he may be convicted of the minor offence, although he is not charged with it. The
major and minor offence must be cognate offence, which have the main and principal ingredients
in common.
(3) A person charged with an offence may be convicted of an attempt to commit that offence although
the attempt is not separately charged.
(4) A person charged with an offence cannot be convicted of a minor offence where the conditions
requisite for the initiation of proceeding in respect of that minor offence are not satisfied e.g.,
where sanction has not been obtained for prosecution.

Code of Criminal Procedure, 1973 53

 Persons may be charged jointly
Section 219 to 222 have provided for the joining of charges against the same person in the same trial.
Section 223 deals with joint trials of more than one person. This Section is the last exception to Section
218 which lays down the general principle that every offence must be charged and tried separately.

Section 223
The following persons may be charged and tried together—
(a) persons accused of the same offence committed in the course of the same transaction. The word
same offence indicates the same physical act of crime.
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such
offence.
(c) persons accused of more than one offence of the same kind, within the meaning of Section 219
committed by them jointly within the period of twelve months.
(d) persons accused of different offences committed in the course of the same transaction.
(e) when one person is accused of an offence which includes theft, extortion, cheating or criminal
misappropriation, and another of receiving or retaining or assisting in disposing of or concealment
of the stolen property may be tried jointly. The thief and the receiver of the stolen property may be
jointly tried. The offences of dacoity and receiving property stolen in the commission of the dacoity
may be tried together.
(f) persons accused of offences under Section 411 and 414 or Section 379 may be tried together.
(g) This clause provides for the joint trial of offences under Chapter XII of the IPC relating to the same
coin and abatement or attempt to commit such offence.
Provided that it is open to the accused, even in cases which do not fall under Section 223, to apply
for being tried together, if the magistrate is satisfied that such persons would not be prejudicially
affected thereby, and it is expedient to do so, try all such persons together.

TRIAL BEFORE A COURT OF SESSION

Procedure for trial before a court of session
Section 225 to Section 337, Cr.P.C.
Section 225 - In every trial before a court of session, the prosecution shall be conducted by a public
prosecutor.
Section 226 - When the accused appears or is brought before the court in pursuance of a commitment
of the case [under Section 209, Cr.P.C.], the prosecution 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.
Section 227 - If after considering the record of the case and hearing arguments of prosecution and
accused, the Judge considers that there is no sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reason for doing so.
Section 228 - Framing of charge - If after considering the record of case and hearing arguments, the
judge is of opinion that there is ground for presuming that the accused has committed an offence.
(a) If the offence is not exclusively triable by the court of session, he may frame a charge against the
accused and transfer the case to Chief Judicial Magistrate or Judicial Magistrate of the first class,
on being transferred, case shall be tried as a warrant case instituted on police report.

54 Code of Criminal Procedure, 1973

(b) if the offence is exclusively triable by court of session, he shall frame in writing a charge against
the accused. 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.
Section 229 - Conviction on plea of guilty - If the accused pleads guilty, the judge shall record the plea
and may, in his discretion, convict him thereon.
Section 230 - If the accused refuses to plead or does not plead or claims to be tried or has not been
convicted under Section 229, Cr.P.C. The date shall be fixed for the examination of witnesses, and on
the application of the prosecution, the judge may issue a process [summons etc.] for the attendance
of witnesses or for production of documents or other things.
Section 231 - Evidence for prosecution on the date so fixed, the judge shall proceed to take all evidence
of prosecution as produced in support of the case.
The judge may permit the cross-examination of any witnesses be deferred until any other witness or
witnesses have been examined or recall any witnesses for further cross-examination.
Section 232 - Acquittal - If after taking prosecution evidence, examination of accused and hearing
prosecution and the defence on the point, the judge considers that there is no evidence that the
accused committed the offence, the judge shall record an order of acquittal.
Section 233 - Entering upon defence - where the accused has not been acquitted under Section 232,
he shall be called upon to enter on his defence and to adduce evidence in support of his case.
(2) If the accused puts any written statement, the judge shall file it with the record.
(3) If the accused applies for the issue of process [summons etc] for the attendance of any witnesses
or for the producing of any document or thing, the judge shall issue such process unless he considers,
for reasons to be recorded that application has been made for the purpose of vexation or delay or for
defeating the ends of justice.
Section 234 - Arguments - When the examination of the witnesses, if any for the defence is completed,
the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply.
Provided that where any point of law is raised by the accused or pleader, the prosecution may, with the
permission of the judge, make his submission with regard to such point of law.
Section 235 - Judgement of acquittal or conviction - after hearing arguments and points of law [if any]
the judge shall give a judgement in the case.
(2) if the accused is convicted, the judge shall, unless he proceeds in accordance with the provision of
Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
Section 236 - Previous conviction - If the accused has not admitted previous conviction, the judge,
after conviction under Section 229 or Section 235, takes evidence in respect of the alleged previous
conviction, and shall record a finding thereon.

Code of Criminal Procedure, 1973 55

 Trial of cases in session court under section 225 to 337, Cr.P.C.

Case committed by magistrate to session court

Public prosecutor conducts the prosecution

Accused appears to hear prosecution and accused

To discharge of frame on writing

Prosecution evidence

If no evidence against accused acquit him

If evidence is sufficient to record statement of accused under section 313,

Cr.P.C.

Defence evidence

Accused may put written statement

Arguments

Judgment

Acquittal or conviction

TRIAL OF WARRANT-CASES BY MAGISTRATES

Trial of warrant cases by magistrate instituted on a police report
Section 238 to 243, Cr.P.C.
Section 238 - When in a warrant case instituted on police report i.e., charge-sheet is submitted by
police, the accused appears or brought before court i.e., from judicial custody, at the commencement
of the trial, the magistrate shall satisfy himself that the provision of Section 207 has been complied
with i.e., copy of charge-sheet has been supplied to accused free of cost.
Section 239 - After considering police report, documents of accused and after giving prosecution
and accused an opportunity of being heard, the magistrate considers the charge against accused
groundless, he shall discharge the accused, stating the reasons for doing so.
Section 240 - If upon such consideration, examination and hearing, the magistrate is of opinion that
the accused has committed an offence, he is competent to try and the accused could be adequately
punished by him, he shall frame in writing a charge against the accused.
The charge shall be read and explained to the accused, and he shall be asked whether he pleads guilty
or claims to be tried.
Section 241, Cr.P.C. - If the accused pleads guilty, the magistrate may, in his discretion, convict him
thereon.

56 Code of Criminal Procedure, 1973

Section 242, Cr.P.C.
If the magistrate has not convicted the accused under Section 241, Cr.P.C. and the accused refused to
plead and claims to be tried, the magistrate shall fix a date for prosecution evidence.
The magistrate may, on application of prosecution issue summons to any witnesses directing him to
attend court or to produce any document or other thing.
On the date so fixed, the magistrate shall proceed to take all such evidence as may be produced in
support of the prosecution.
Provided the magistrate may permit the cross-examination of any witnesses to be deferred until any other
witnesses has been examined. The magistrate may recall any witnesses for further cross-examination.

Section 243, Cr.P.C.

The accused shall be called to enter upon his defence and produce his evidence. If the accused puts
in any written statement, the magistrate shall file it with record.
The accused may make an application that any witnesses be called, magistrate may issue summons
unless the magistrate is of the opinion that application is examined or has been made for delay or for
defeating ends of justice.
Provided that if any witness has already been cross-examined by the accused, the attendance of such
witness shall not be compelled, unless the magistrate is satisfied that it is necessary for the ends of
justice.
The magistrate may direct that any reasonable expenses incurred by witnesses in alleging court be
deposited.

Section 248 Conclusion of trial

If the magistrate finds the accused not guilty, he shall record an order of acquittal.
If the magistrate finds the accused guilty, after hearing the accused on the question of sentence, pass
sentence upon him according to law.

Code of Criminal Procedure, 1973 57

 Trial of warrant cases by magistrate instituted on police report under section
238 to 243

Charge-sheet

Supply of copy of charge-sheet

Arguments on charge

Framing of charge in writing or discharge

If not discharge

Presentation evidence

Statement under section 313, Cr.P.C. of accused

Defence evidence if any

Final argument

Judgment

Conviction or acquittal

Cases instituted otherwise on police report

Section 244 to Section 247, Cr.P.C.
Section 244 - When in any warrant case instituted otherwise then on police report [i.e., complaint
case], the accused appears or is brought before court, the magistrate shall proceed to hear prosecution
and take all such evidence in support of the case [pre-charge evidence].
The magistrate may, on the application, issue a summons to any of its witnesses directing him to
attend or produce any document or other thing.
Section 245 - Discharge - If upon taking all the evidence, the magistrate considers for reasons to be
recorded, that no case against the accused has been made out, the magistrate shall discharge him.

58 Code of Criminal Procedure, 1973

(2) if the magistrate considers the charge to be groundless, he may discharge it at any previous stage
of the case.
Section 246, Cr.P.C. - When accused is not discharged—
(1) If after taking all evidence or at any previous stage, the magistrate is of opinion that there is ground
for presuming that the accused has committed an offence, the magistrate is competent to try and
the accused can be adequately punished by him, he shall frame in writing a charge against the
accused.
(2) The charge shall be read and explained to the accused, and he shall be asked whether he pleads
guilty or not.
(3) if the accused pleads guilty, the magistrate shall record the plea and may in his discretion, convict
him thereon.
(4) if the accused refuses to plead or does not plead or claims to be tried and the magistrate has
not convicted him under Section 246(3), Cr.P.C. the accused shall be required to state, whether he
wishes to cross-examine any of the prosecution witnesses whose evidence has already been taken
under Section 244, Cr.P.C.
(5) If he says he does so wish, the witnesses named by him shall be re-called and after cross-
examination and re-examination [if any], they shall be discharged.
(6) the evidence of any remaining prosecution shall not be taken.
Section 247, Cr.P.C. - Defense evidence - the accused shall then be called to enter upon his defence.
Section 248, Cr.P.C. - Conclusion of trial - if the magistrate finds the accused not guilty, he shall record
an order of acquittal.
Where the magistrate finds the accused guilty, benefit of Section 325 or Section 360 has not been
given, he shall hear the accused on the question of sentence, pass sentence upon him according to
law.
(3) if a charge of previous conviction has been framed and the accused does not admit that he has
been previously convicted, the magistrate may, after he has convicted, take evidence in respect of the
alleged previous conviction and shall record a finding thereon.
Provided that no such charge shall be read out nor he shall be asked to plead guilty on previous
conviction unless the accused has been convicted under Section 248(3), Cr.P.C.

Code of Criminal Procedure, 1973 59

 Trial of warrant cases by magistrate instituted on complaint under section 244 to 247

Filing of complaint before court

Cognizance for offence and summoning to accused person

Pre-charge evidence

Charge

Pre-charge evidence

Arguments on charge

Discharge or framing of charge

If not discharged, free to call remaining prosecution evidence for the cross-examination
or their witness

After closure to prosecution evidence statement under section 313, Cr.P.C.

Defence evidence if any

Final arguments

Judgment

Conviction or acquittal

Absence of complainant
Section 249, Cr.P.C.
If in a complaint case, on any day fixed for hearing, the complainant is absent, offence is non-cognizable
and compoundable, the magistrate may, at any time before the charge is framed, discharge the accused.
Where a complainant has been dismissed for default, the magistrate has no power to recall his
order [Harishchandra versus Kanti Lal, 1998 Cr LJ 3754 (Bom)]. On the death of the complainant, the
magistrate has discretion to allow another person to continue proceedings. [Balbir Kaur versus Dalip
Singh, 1987 Cr LJ 1555 (P&H); Jainninder Jain versus State of Haryana, 2007 Cr LJ 1970 (1972)]

TRIALS OF SUMMONS CASE BY MAGISTRATE

Procedure for trial of summon cases by magistrate
Section251 - Substance of an accusation
When in a summons case the accused appears or is brought before the magistrate, the particulars of
the offence of which he is accused shall be stated to him (substance of accusation) and he shall be
asked whether he pleads guilty, or has any defence to make, but it shall not be necessary to frame a
formal charge.

60 Code of Criminal Procedure, 1973

Section 252 - 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 in his discretion, convict him thereon.

Section 253 - Conviction on plea of guilty in absence of accused in petty cases

(1) Where a summons has been issued under Section 206 and the accused desires to plead guilty to
the charge without appearing before the magistrate he shall transmit to the magistrate, by post or by
messenger, a letter containing his plea and also the amount of fine specified in the summons.
(2) The magistrate may, in his discretion, convict the accused in his absence, on his plea of guilty and
sentence him to pay the fine specified in the summons, and the amount transmitted by the accused
shall be adjusted towards that fine, or where a pleader authorised by the accused in this behalf pleads
guilty on behalf of the accused, the magistrate shall record the plea as nearly as possible in the word
used by the pleader and may, in his discretion, convict the accused on such plea and sentence him as
aforesaid.

Section 254 - Procedure when not convicted

(1) If the magistrate does not convict the accused under Section 252 or Section 253 the magistrate
shall proceed to hear the prosecution and take all such evidence and may be produced in support of
prosecution, and also to hear the accused and take all such evidence as he produces in his defence.
(2) The magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a
summons to any witnesses directing him to attend or to produce any document or other thing.
(3) The magistrate may, before summoning any witnesses on such an application, require that the
reasonable expenses of the witnesses incurred in attending for the purposes of the trial be deposited
in the courts.

Section 255 - Acquittal or conviction

(1) If the magistrate, upon taking the evidence referred to in Section 254 and such further evidence, if
any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record
an order of acquittal.
(2) Where the magistrate does not proceed in accordance with the provision of Section 325 or Section
360, he shall, if he finds the accused guilty, pass sentence upon him, according to law.
(3) A magistrate may, under Section 252 or Section 255, convict the accused of any offence triable
under this Chapter, which form the facts, admitted, or proved he appears to have committed, whatever
may be the nature of complaint or summons, if the magistrate is satisfied that accused would not be
prejudiced thereby.

Code of Criminal Procedure, 1973 61

 Trial of summon case by magistrate

Accused appears before court substance to act of acquisition stated

If accused pleads guilty conviction (in pretty offences plead guilty may be
by post or by Pleader)

Statement of accused under section 313, Cr.P.C.

Defence evidence

Final arguments

Conviction or acquittal

Non-appearance or death of complainant - Section 256

(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the
accused or any subsequent hearing, the complainant does not appear, the magistrate shall acquit the
accused, unless for some reason he thinks it proper to adjourn the hearing of the case to the same
other day.
Provided where the complainant is represented by a pleader or officer conducting the prosecution or
where the magistrate is of opinion that personal attendance of the complainant is not necessary, the
magistrate may dispense with his attendance and proceed with the case.
(2) The provision of sub-section 1 shall, so far as be, apply to cases where the non-appearance of the
complainant is due to his death.
In a judgement titled AS Gauraya versus SN Thakur, AIR 1986 SC 1440 wherein Apex Court has held that
there is no provision in the Code empowering a magistrate to review a case after an order of acquittal
under Section 256, Cr.P.C.

Withdrawal of complaint - Section 257

If a complainant, at any time before a final order is passed in any case under this Chapter, satisfy the
magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the

62 Code of Criminal Procedure, 1973

accused, or if there be more than one accused, against all or any of them, the magistrate may permit
his to withdraw the same, and shall thereupon acquit the accused.
There must be an existence of a request from the complainant indicating good grounds as to why the
complainant wishes to withdraw and the magistrate after applying his mind to the said request must
be satisfied that in fact good grounds exist for withdrawal of the complaint.
[Provident Fund Inspector, Tirupati versus Madhusudana Chaudhary, (2000) 9 SCC 506].

Power to stop proceedings in certain cases - Section 258

In any case instituted otherwise than upon complaint, a magistrate of the first class or, with the
previous sanction of Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be
recorded by him stop the proceedings at any stage without pronouncing any judgement. Where such
stoppage of proceedings has been made after recording evidence of principal witnesses, a judgement
of acquittal is required to be made and thereafter accused be released and such release shall have the
effect of discharge.
Where a complaint is filled by a private party for example a complaint under Section 138 of the
Negotiable Instruments Act, Section 258, Cr.P.C. would not apply, and accused cannot be discharged
under Section 258, Cr.P.C.
[Mehta Praful Chandra Kalidas versus Patel Chejibhai Kalidas, 2006 Cr LJ 1660 (1661, 1662)]

Power of court to convert summons cases and warrant-cases - Section 259

When in the course of the trail of a summon-case relating to an offence punishable with imprisonment
for a term exceeding six months, it appears to the magistrate that in the interest of justice, the offence
should be tried in accordance with the procedure for the trail of warrant-cases, such magistrate may
proceed to re-hear the case in the manner provided by this Code for the trial of warrant-cases and may
recall any witnesses who may have been examined.

SUMMARY TRIALS
What offences can be tried summarily?
Summary trial implies speedy disposal. Summary case means a case which can be tried and disposed
of at once.
Section 260 to 265 of Cr.P.C. deals with summary trials.
Section 260, Cr.P.C. – Power to try summarily.—(1) Notwithstanding anything contained in this Code:—
(a) Any chief judicial magistrate
(b) Any metropolitan magistrate
(c) Any magistrate of the first class specially empowered in this behalf by the High Court may, if he
thinks fit, try in a summary way all or any of the following offences—
(I) Offences punishable with imprisonment for a term up to two years
(II) offences of theft (under Section 379, 380 and 381, IPC) where the value of the property stolen
does not exceed two thousand rupees.
(III) receiving or retraining stolen property under Section 411, IPC where the value of the property
does not exceed two thousand rupees.
(IV) Assisting in the concealment or disposal of stolen property under Section 414, IPC, where the
value of the property does not exceed two thousand rupees.

Code of Criminal Procedure, 1973 63

 (V) offence under Section 454 and 456, IPC.
(VI) Insult with intent to provoke a breach of the peace under Section 504, and criminal intimidation
under Section 506, IPC.
(VII) abatement of any of the foregoing offences.
(VIII) an attempt to commit any of the foregoing offences, when such attempt is an offence.
(IX) an offence in respect of which a complaint may be made under Section 20 of the Cattle-
Trespass Act, 1871.
(2) If in the course of the summary trial of a case, it appears to the magistrate that the case is one
which can not be tried in a summary way, the magistrate shall recall any witness who may have been
examined and proceed to re-hear the case in the manner provided by the Code.
If the mode of trial sought to be altered in the midstream, the trial must from its inception be
conducted in the regular manner.
[State of Gujarat versus DN Patel, 1971 Cri LJ 1244 (Guj)] Section 261, Cr.P.C.

Section 261, Cr.P.C. – Summary Trials by magistrate of the second class

The High Court may confer on any magistrate of the second class power to try summarily any offence
which is punishable only with fine or with imprisonment for a term not excluding six months with or
without fine, and any abatement or attempt to commit any such offence.

Section 262, Cr.P.C – Procedure for summary trials

(1) The procedure specified for the trial of summary case shall be followed for the trial of summary
case.
(2) but sentence of imprisonment for a term exceeding three months shall not be passed in the case
of any conviction under this Chapter.
This sub-section lays down the limit of the term of sentence of imprisonment in summary trials.

Section 263 – Record in summary trials

In every case tried summarily, the magistrate shall entered the following particulars, namely—
(a) The serial number of the case
(b) The date of the commission of the offences
(c) The date of the report or complaint
(d) The name of the complaint
(e) The name, parentage and residence of the accused.
(f) The offence complained of and the offence proved and clauses of Section 260 and value of the
property in respect of which the offence has been committed.
(g) The plea of the accused and his examination.
(h) The findings
(i) The date of which proceedings terminated.

Section 264, Cr.P.C. – Judgement in cases tried summarily

Every case tried summarily in which the accused does not plead guilty, the magistrate must record the
substance of the evidence and the judgement that is delivered, must also contain a brief statement of
the reasons for coming to a particular finding.

64 Code of Criminal Procedure, 1973

Section 265, Cr.P.C. – Language of record and judgement
This section emphasises that every such record i.e., the particulars mentioned in Section 263 and the
substance of evidence and judgement must be recorded in the language of the court. It also lays down
that the magistrate concerned must himself sign such record and judgement.

PLEA BARGAINING
Section 265A to 265L deals with plea bargaining
Plea Bargaining - To reduce the delay in the disposal of the criminal trials and to alleviate the suffering
of under-trial prisoners, the provisions relating to disposal of cases by “plea bargaining’ have been
added in the Code.
Plea bargaining means pretrial negotiations between the accused and prosecution during which the
accused agrees to plead in exchange for certain concessions by the prosecution [State of Gujarat
versus Natwar Harehandji Thakar, 2005 Cri LJ 2957 (Guj DB)]

Section 265A – Application of the Chapter

This Chapter shall apply in respect of an accused against whom a charge-sheet has been filed by police
or cognizance has been taken by magistrate on a complainant in respect of a complaint in respect of
an offence punishable with imprisonment upto seven years.
But does not apply to an offence that affects the socio-economic condition of the country or has been
committed against a woman, or a child below the age of fourteen years.
The Central Government shall by notification determine the offences which shall be the offences
affecting the socio-economic conditions of the country.

Section 265B – Application for plea bargaining

(1) A person accused of an offence may file an application for plea bargaining in court.
(2) The application shall contain a brief description of the case and shall be accompanied by an affidavit
sworn by the accused stating that he has preferred application voluntarily, after understanding the
nature and extent of punishment and that he has not been previously convicted.
(3) After receiving an application the court shall issue notice to the prosecution or complainant as the
case may and to the accused and shall fix a date for the hearing of the case.
(4) When the public prosecutor or complainant and accused appears on the date fixed, the court
examines the accused in camera, to ensure that the accused has filed the application satisfactorily.
(a) On being satisfied that the application has been made voluntarily, the court shall provide time
to prosecution [complainant] and to the accused to work out a mutually satisfactory disposition
of the case which includes the amount of compensation to the victim and expenses of the
case.
(b) If an application has been made involuntarily or an accused has been previously convicted with
the same offence the court shall proceed in accordance with the provision of this Code.

Section 265C – Guidelines for mutually satisfactory disposition

The court shall issue notice to the parties to the case to participate in the meeting to work out a
satisfactory disposition of the case. It shall be the duty of the court to ensure that the parties have
participated in the meeting voluntarily.

Code of Criminal Procedure, 1973 65

 Provided that the accused or victim may participate in the meeting with his pleader, if any, engaged in
the case.

Section 265D – Report of the disposition

Where the satisfactory dispositions of the case have been worked out, the court shall prepare a report
of such dispositions and it shall be signed by the presiding officer of the court and all other persons
who participated In the meeting.
If no such dispositions have been worked out, the court shall record such observation and case shall
be proceeded with in accordance with the provisions of this Code.

Section 265E – Disposal of the case

After preparation of report, court shall dispose of the case in the following manner—
(a) The court shall award compensation to the victim according to the dispositions and hear the
parties on the quantum of the sentence. The accused may be released on probation of good
conduct or after admonition under section or under section or under the provision of Probation of
Offenders Act, 1958.
If after hearing the parties, the court finds that minimum has been provided for the offence, it may
sentence the accused to half of such minimum punishment.
Court may also sentence one fourth of the punishment provided for the offence.
Judgement shall be delivered in the open court and shall be signed by the presiding officer of the court.
The judgement shall be final and no appeal except the special leave petition under Article 136 and writ
petition under Article 226 and 227 of the Constitution, shall lie in any court against the judgement.
The provisions of Section 428, Cr.P.C. shall apply for setting off the period undergone by the accused.
The statement or facts stated by an accused in an application for plea bargaining shall not be used for
any other purpose except for the purpose of this Chapter.

ATTENDANCE OF PERSONS CONFINED OR DETAINED IN PRISONS

Conditions and circumstances that persons confined or detained in prisons are brought before
Court
Section 267
When any person detained in prison is being required for answering to a charge for the offence or for
the purpose of any proceedings against him
Or
His attendance is being required for the ends of justice to examine him as a witness.
The Court may make an order requiring the officer-in-charge of the prison to produce such persons
before the Court.

EVIDENCE IN INQUIRIES AND TRIALS

Mode of taking and recording evidence

Section 273:—
All evidence shall be taken in the presence of the accused except when his personal attendance is
dispensed, with evidence may be taken in the presence of his pleader. Provided that when evidence

66 Code of Criminal Procedure, 1973

of a rape victim or any other sexual offence, who is below the age of eighteen years is to be recorded,
the Court to take appropriate measures to ensure that such victim is not confronted with or by the
accused at the time of recording of evidence.

Section 274, Cr.P.C. – Recording of Evidence in summons cases and inquiries

In summons cases, inquiries under Section 145 to 148 and in all proceedings under Section 446, the
Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance
of his evidence.
Provided that if the Magistrate is unable to make such a memorandum himself, cause such memorandum
to be made in writing or from his dictation in open Court.
Such memorandum shall be signed by the magistrate and shall form part of the record.

Section 275, Cr.P.C. – Record in Warrant cases

(1) In all warrant cases tried before a Magistrate, the evidence of each witness shall be taken down
in writing either by Magistrate himself or by his dictation in open Court or where Magistrate is
incapable to take evidence, under his directions and Superintendence, by an officer of the Court.
Provided that evidence of a witness may also be recorded by audio video electronic means in the
presence of the advocate of the person accused of the offence.
(2) Magistrate shall record reasons for his inability to take evidence.
(3) Such evidence shall ordinarily be taken down in the form of narrative, but the Magistrate may,
in his discretion take down or cause to be taken down, any part of such evidence in the form of
question and answer.
(4) The evidence so taken down shall be signed by the Magistrate and shall form part of the record.

Section 276, Cr.P.C. – Record in Trial before Court of Sessions

1. In All trials before a Court of Sessions, the evidence of each witness shall be taken down in writing
either by the presiding Judge himself or by his dictation in open Court or under his direction and
superintendence, by an officer of the Court appointed by him on this behalf.
2. Such evidence shall ordinarily be taken down in the form of a narrative, but the Presiding Judge
may, in his discretion, take down or cause to be taken down, any part of such evidence in the form
of question and answer.
3. The evidence so taken down shall be signed by the Presiding Judge and shall form part of the
record.

Section 278 – Procedure after completion of evidence

As evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over
to the witness in the presence of the accused or in the presence of his pleader.
(2) If the witness denied the correctness of any part of the evidence, the Magistrate or Presiding Judge
instead of correcting the evidence, make a memorandum thereon of the objections made to it by the
witness and add remarks as he thinks necessary.
(3) If the evidence is recorded in a language different from that which the witness understands, the
record shall be interpreted to him in a language which he understands.

Code of Criminal Procedure, 1973 67

 Mode of recording examination of the accused by a Metropolitan Magistrate and by any
Magistrate or by a Court of Session
Section 281, Cr.P.C.
The Metropolitan Magistrate is required to make a memorandum of the substance of the examination
of the accused, such a memorandum shall be signed by the Magistrate and shall form part of the
Record.
Any other Magistrate (Other than a Metropolitan Magistrate) or the Presiding Judge of the Sessions
Court is required to record in full the whole of such examination including every question put to him
and the answer given by him.
The record shall, if Practicable, be in the language in which the accused is examined; if not practicable,
it shall be recorded in the language of the Court.
The record shall be shown and read to the accused, if it is in a language which he does not understand,
it shall be interpreted in the language which he understands.
The record shall be signed by the accused and by the Magistrate or by the Presiding judge. It shall be
certified by the Magistrate or Judge under his own hands that examination was taken in his presence
and hearing and record contains a full and true.

Mode or manner in which the documents relied upon by the prosecution and defence can be
proved without any formal proof thereof
Section 294, Cr.P.C.
Where any document is filed before any court by the prosecution or accused. The particulars of each
such document shall be included in a list as prescribed by the State Government. The pleader for
the prosecutions or the accused, shall be called upon to admit or deny the genuineness of each such
document.
Where the genuineness of any document is not disputed, such document may be read in evidence in
any inquiry, trial or other proceeding, without proof of signature of the person to whom it purports to
be signed.
Provided that the court may, in its discretion, require such signature to be proved.
Where the doctor was not examined but the post-mortems report was marked exhibit as the counsel
for the accused admitted genuineness of the document, the post-mortems report was held admissible
in evidence. [Madam Sah versus State of Bihar, 1998 (2) Crimes 59 (Pat WB)].

Evidence can be recorded in the absence of accused

Section 299, Cr.P.C.
This section deals with recording of evidence
(1) Where the accused has been absconded and there is no immediate prospect of his arrest.
(2) Where the offender is unknown.
In the first case, the court can record depositions of prosecution witnesses.
Such evidence may, on the arrest of the accused be given in evidence against him on the inquiry into
or trial of the case under the following circumstances—
(i) If the witness is dead
(ii) If a witness is incapable of giving evidence.

68 Code of Criminal Procedure, 1973

(iii) If attendance of witnesses would cause unreasonable delay, expense or inconvenience. In the
second case, where the offender is unknown and the offence committed is punishable with death
or imprisonment for life, the High Court of Session Judge may direct a first-class magistrate to
record prosecution evidence.

Deposition so recorded may be used at the trial

(a) If the witness is dead or
(b) If witness is incapable of giving evidence or
(3) If the witness is beyond the limits of India.

GENERAL PROVISIONS AS TO ENQUIRIES AND TRIALS

A person once committed or acquitted cannot be tried for the same offence
Section 300, Cr.P.C. is based on the maxim nemo debet bis vexari, which means that a person cannot
be tried a second time for an offence with which he was previously charged.
Sub-section (1) To bar the trial of any person already tried, it must be shown.
(1) that he has been tried by a competent court for the same offence or one for which he might have
been charged or convicted at that trial, on the same facts. [Under sub-section (1) and 2 of Section
221, Cr.P.C.].
(2) that he had been convicted or acquitted at the trial.
(3) that such conviction or acquittal is in force.
Sub-section (1) of Section 300, Cr.P.C. applies to cases covered by Section 221(1) and (2) and not in
cases covered by Section 220(1), Cr.P.C.
Section 300(2), Cr.P.C. – This sub-section permits trial for a distinct offence. After acquittal in case
of bribery subsequent charge under Section 25(1)(a) under the Arms Act, is not a bar as they are two
different offences arising out of different facts even though the commission was discovered in the
same transaction. [Narsing Rao Ganga Ram Pimpale versus State of Maharashtra, 1978 Cr CJ 711 (Bom
DB)]
Sub-section (3) – The facts or circumstances must be such as to indicate a different kind of offence of
which there could be no conviction at the first trial. The new facts and circumstances were not known
to the court at the time of the first trial.
Illustration
(d) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried
again for culpable homicide
Sub-section 4 – If a person acquitted or convicted of any offence, may be subsequently charged with
and tried for any other offence, if the court by whom he was first tried was not competent to try the
offence with which he is subsequently charged.
Illustration
(e) A is charged by a magistrate of the second class with, and convicted by him of, theft of property
from the person of B. A may subsequently be charged with, and tried for, robbery on the same facts.
(b) A, B and C are charged by a magistrate of the 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.

Code of Criminal Procedure, 1973 69

 In illustration (e) the offence of robbery is not triable by a magistrate of the second class. It is triable
only by a magistrate of the second class. It is triable only by a magistrate of the first class. In illustration
(b) the offence of dacoity is not triable by a magistrate of the first class, it is triable only by a court of
session.

Sub-section (5)
A person discharged under Section 258, Cr.P.C., shall not be tried again for the same offence except
with the consent of the court by which he was discharged or of any other court to which the first
mentioned court is subordinate.

Sub-section 6
Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897 or of
Section 188 of this Code.
This sub-section provides where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished under any of those
enactments, but shall not be liable to be punished twice for the same offence.

Appearance by public prosecutors

Section 301, Cr.P.C.
(1) The public prosecutor or Assistant public prosecutor in charge of a case, may appear and plead
without any written authority, before any court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to prosecute any person in any court,
the pleader so instructed shall act under the directions of the public prosecutor or Assistant
public prosecution and may, with the permission of the court, submit written arguments after the
evidence is closed in the case. The public prosecutor or Assistant public prosecutor in charge of a
case shall conduct the prosecution.

Permission to conduct Prosecution

Section 302, Cr.P.C.
Any magistrate inquiring into or trying a case may permit the prosecution to be conducted by any
person other than a police officer below the rank of inspector. An advocate general or government
advocate or a public prosecutor or assistant public prosecutor, can conduct prosecution without such
permission.
Provided that any police officer, if he has taken part in the investigation into the offence with respect
to which the accused is being prosecuted, shall not be permitted to conduct the prosecution.
(2) Any person conducting the prosecution may do so personally or by a pleader.
If a private person is aggrieved of the offence committed against him or anyone in whom he is interested,
he can approach the court and seek permission to conduct the prosecution. It is open to the court to
consider the request. If the court thinks that the cause of justice would be served better by granting
such permission, the court will generally grant such permission. [JK International versus State, AIR
2001 SC 1142].
Where the prosecution was for offences under Sections 406 and 420, IPC, on the death of the
complainant pending trial, his sons were allowed to continue the prosecution. [Rashida Kamalnddin
Syed versus Shaikh Subelal Mardan, 2007 (2) SCC (Cri) 63]

70 Code of Criminal Procedure, 1973

Right of accused to be defended by a pleader of his choice
Section 303 Cr.P.C.
Any person accused of an offence before a criminal court, or against whom proceedings are instituted
under this court, has a right to be defended by a pleader of his choice.

Legal Aid to Accursed at state expense

Section 304, Cr.P.C.
(i) The session court shall assign a pleader to the accused for his defence, at the expense of the State,
if the accused is not represented by a pleader and court is satisfied that he has not sufficient
means to engage the pleader.
(ii) The selection of the pleader, his remuneration and the facilities to be given to the pleader by
court, are to be governed by the rules that may be framed by the High Court in this regard with the
previous approval of the State Government.
(iii) The State Government may, by notification, direct that provisions of sub-section (1) and sub-
section (2) shall apply to any class of trials before other courts in the State.

Tender of pardon to accomplice

Section 306, Cr.P.C.
Any person supposed to have been directly or indirectly concerned with the offence, the chief judicial
magistrate, metropolitan magistrate and magistrate of the first class at any stage of inquiry or trial,
may tender pardon to such person for obtaining his evidence, on the conditions that he will make a full
and true disclosure of the whole of the circumstances within his knowledge regarding offence.
(2) This section applies to—
(a) any offence exclusively triable by court of session or by the court of a special judge.
(b) any offence punishable with imprisonment which may extend to seven years or with a more
severe sentence.
(3) Every magistrate who tenders a pardon under sub-section (1) shall record.
(a) his reason for so doing
(b) whether the tender was or was not accepted by the person to whom it was made.
The magistrate shall, on application made by the accused, furnish him with a copy of such record free
of cost.
(4) Every person accepting a tender of pardon made under sub-section (1)—
(a) shall be examined as a witness in the court of magistrate taking cognizance of the offence.
(b) Shall be detained in custody until the termination of trial unless he is already on bail.
(5) Where a person has accepted a tender of pardon, the magistrate shall commit the case—
(a) to the court of session if the offence is triable exclusively by that court
(ii) to a court of special judge, if the offence is triable exclusively by that court.
(b) In any other case, take over the case to the chief judicial magistrate, who shall try the case himself.

Section 307, Cr.P.C.

The preceding section deals with tender of pardon by magistrates, this section applies to tender of
pardon by the court of session, the special judge or the chief judicial magistrate.

Code of Criminal Procedure, 1973 71

 Section 308 – Trial of person not complying with condition of pardon
Where in regard to a person who has accepted a tender of pardon, made to him under Section 306
or Section 307, the public prosecutor certifies that in his opinion such person had, either by willfully
concealing anything essential or by giving false evidence, not complied with the conditions on which
the tender was made, such person shall be tried for the offence in respect of which pardon was
tendered or for any other offence, he appears to be guilty in connection with the same matter, and also
for the offence of giving false evidence
Provided that such person shall not be tried jointly with any of the other accused.
Provided further that such person shall not be tried for the offence of giving false evidence except with
the sanction of the High Court, and nothing contained in Section 195 or Section 340 shall apply to that
offence.
(2) Any statement made by such person accepting the tender of pardon and recorded by a magistrate
under Section 164, Cr.P.C. or by a court under sub-section (4) of Section 306, Cr.P.C. may be given in
evidence against him at such a trial.
(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon
which tender was made, in which case it shall be for the prosecution to prove that the condition has
not been complied with.
(4) At such trial, the court shall—
(a) If it is a court of session, before the charge is read out and explained to the accused.
(b) If it is the court of a magistrate, before the evidence of the witnesses for the prosecution is taken,
to ask the accused whether he pleads that he has complied with the conditions on which the
tender of pardon was made.
(5) If the accused does so plead, the court shall record the plea and proceed with the trial and it
shall, before passing judgement in the case, find whether or not the accused has complied with the
condition of the pardon, and if it finds that he has so complied, it shall, notwithstanding anything
contained in this Code, pass judgement of acquittal.

Power of magistrate to postpone or adjourn proceedings

Section 309, Cr.P.C.
(1) In every inquiry or trial the proceedings shall be continued from day to day until all the witnesses
have been examined. The court may adjourn the case beyond the following day, after recording reasons,
if it considers that it is necessary.
Provided that when the inquiry or trial relates to offence under Section 376 or under Section 376A,
Section 376 AB, Section 376B, Section 376C, Section 376D, Section 376 DA, Section 376 DB, IPC it shall
far as possible, be completed within a period of two months, from the date of filing of charge sheet.
(2) The court, after taking cognizance of an offence, may adjourn or postpone the commencement of
trial or any enquiry or trial, after recording its reasons, on such terms as it thinks fit, or for such time
as it considers reasonable.
Provided that the magistrate shall not remand an accused beyond the period of fifteen days. Provided
that if witnesses are present, no adjournment shall be granted, except for special reasons recorded to
be in writing.
Provided that no adjournment shall be granted enabling the accused to show cause against the
sentence proposed to be imposed on him.

72 Code of Criminal Procedure, 1973

Provided also that—
(a) No adjournment shall be granted at the request of the party, except where the circumstances are
beyond the control of the party.
(b) No adjournment shall be granted on the grounds that the party or counsel is engaged in another
court.
(c) Where a witness is present in court, but a party or pleader is not present in court, though present
in court, but not ready to examine or cross examine the witness, the court may, if it thinks fit
record the statement of the witness and pass such orders as it thinks fit dispensing with the
examination-in-chief or cross-examinations of the witness.
Explanation 1 – If sufficient evidence has been obtained which raises a suspicion that the accused has
committed an offence, and it appears that further evidence may be obtained if the accused is being
remanded, this is a reasonable cause of remand.
Explanation 2 – The terms on which an adjournment or postponement may be granted include, in
appropriate cases, the payment of costs by the prosecution or the accused.

Magistrate can make a local inspection

Section 310, Cr.P.C.
Any Judge or magistrate may at any stage of any inquiry, trial or other proceedings after due notice to
the parties, visit and inspect any place where offence is alleged to have been committed Magistrate
can also make local inspection for the purpose of appreciating evidence, where the Court makes local
inspection, it is mandatory for the Court to record memo of inspections. Failure to record memorandum
does not vitiate trial, but it is an irregularity that can be remedied under Section 265(1), Cr.P.C.

Power of Court to summon material witness or examine person present

Section 311, Cr.P.C.
Any Court may, at any stage of any inquiry, trial or other proceedings to act in one of the three ways:
(i) To summon any person as a witness.
(ii) To examine any person in attendance, though not summoned as a witness.
(iii) To recall and re-examine any person already examined.
The Second part of Section 311 is mandatory which provides that the Court shall—
(a) Summon and examine or
(b) Recall and re-examine any such person if his evidence appears to be essential to the just decision
of the case.

Power of Magistrate to order person to give specimen signatures or handwriting

Section 311A, Cr.P.C.
If a Magistrate of the first class is satisfied that, for the purpose of any investigation or proceeding
under this Code, it is expedient to direct any person, including an accused, to give specimen signatures
or handwriting, he may make an order to that effect. The person so ordered shall be produced or
shall attend at the time and place specified in such order and shall give his specimen signatures or
handwriting.
Provided that no such order shall be made unless a person has been arrested in connection with the
investigation or proceedings.

Code of Criminal Procedure, 1973 73

 Power of Court regarding expenses of complainant and witnesses
Section 312, Cr.P.C.
Any Criminal Court may, if it thinks fit, order that reasonable expenses of the complainant and witnesses
be given which have been incurred in attending Court for the purpose of any inquiry, trial or other
proceeding. Such order shall be made subject to the rules made by the State Government.

Power of Court to examine the accused

Section 313, Cr.P.C.
In every inquiry or trial, the accused is given an opportunity to explain any circumstances appearing in
the evidence against him. The Court—
(a) May at any stage, put such questions to the accused as the Court considers necessary, without
previously warning him.
(b) After completion of prosecution evidence but before he is entered upon his defence, shall question
the accused generally on the case.
In the first part, the Court has discretion, but in the second part it is mandatory that the accused shall
be questioned generally on the case.
Provided that in a summon case, if personal attendance of the accused has been dispensed with, Court
may also dispense with his examination under clause B.
(2) No oath shall be administered to the accused when he is examined under sub-section (1).
(3) If the accused refuses to answer or gives false evidence, he shall not be liable to punishment.
(4) The answer given by the accused may be taken into consideration and put in evidence for or against
him in any other inquiry or trial, if the answer tends to show that he has committed.
(5) The Court may take help of prosecutor and defence counsel in preparing relevant questions which
are to be put to the accused and Court may permit filing of written statement as sufficient compliance
of this Section.

Section 314, Cr.P.C.

Section 314, Cr.P.C. enables the parties to proceed to address oral arguments and also entitles them
to submit in writing to the Court, setting forth, in brief, arguments in support of the case, which would
form part of the Record.
A copy of such memorandum shall be simultaneously furnished to the opposite party.
If the court considers necessary may grant adjournment for filing written arguments otherwise no
adjournment shall be granted for the purpose of filing written statements. Reasons should be mentioned
if adjournment is granted for filing written arguments.

Accused is a competent defence witness

Section 315, Cr.P.C.
The accused is a competent defence witness like any other witness. He may give evidence on oath in
disproof of the charges made against him.
Provided that
(a) the accused shall not be called as a witness except on his own request in writing.
(b) The Court shall not draw an adverse inference on his failure to give evidence.

74 Code of Criminal Procedure, 1973

(2) Any person against whom proceedings are instituted under Sections 98, 107, 108, 109, or 110 Cr.P.C.
or Chapter IX, or Part B, Part C, Part D of Chapter X may offer himself as a witness in such proceedings.
Provided that failure of such person to give evidence, shall not be made subject of any comment by
any of parties or Court and no adverse inference would be raised.

Sections 316, 317 and 318, Cr.P.C.?

Section 316, Cr.P.C.:
Except mentioned in Section 306 and 307, Cr.P.C. (tender of pardon), 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.

Section 317, Cr.P.C.

If the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the
accused is not necessary in the interest of justice or the accused persistently disturbs the proceedings
in the Court. The Judge or Magistrate may, if the accused is represented by a pleader, dispense with
his personal attendance and proceed with the case in his absence. At subsequent stages may direct
his personal attendance.

Section 318, Cr.P.C. - Procedure where accused does not understand proceedings
If the accused, though not of unsound mind, does not understand the proceedings of the case, the
Court may proceed with the inquiry or trial. If the proceedings result in conviction, the proceedings
shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court
shall pass thereon such order as it thinks fit.

Power exercisable under Section 319, Cr.P.C. is an extraordinary power conferred on the Court
to do real justice
Section 319, Cr.P.C.
(1) The Court may proceed against any person not shown or mentioned as accused if it appears from
evidence that such person has committed an offence for which he could be tried together with the
main accused against whom an enquiry or trial is being held.
(2) The Court may issue a warrant of arrest or summons against such person if he is not attending the
Court.
(3) If he is attending the Court, to detain such a person for the purpose of inquiring into or trial of the
offence which he appears to have committed.
(4) Where the Court proceed against such persons:—
(a) The proceedings against such person shall be commenced de novo, and the witnesses must be
re-heard.
(b) Subject to provisions of clause (a), the case proceeds as if such person has been an accused
when the Court took cognizance of the offence upon which inquiry or trial was commenced.
The power exercisable under Section 319, Cr.P.C. is an extraordinary power conferred on the Court to
do real justice, it should be used with caution and only if compelling reasons exist for proceedings
against a person against whom action has not been taken. (Krishnappa versus State of Karnataka, AIR
2004 SC 4298).

Code of Criminal Procedure, 1973 75

 The power under Section 319, Cr.P.C. is discretionary to be used sparingly only on the existence of
compelling reasons, would not be exercised where the possibilities of the petitioner being convicted
are remote. An order under Section 319, Cr.P.C. would not be made mechanically merely on the ground
that some evidence has come on record implicating the person sought to be summoned. (Krishnappa
versus State of Karnataka, AIR 2004 SC 4298).

Public prosecutor can withdraw a case against any person

Section 321, Cr.P.C.
The Public Prosecutor or Assistant Public Prosecutor may, with the consent of the Court, withdraw
from the prosecution of any person in respect of one or more of the offences for which he is tried, case
may be withdrawn any time before judgement is pronounced.
(a) If the withdrawal is made before a charge has been made, the accused shall be discharged in
respect of the offence for which he has been tried.
(b) If a case is withdrawn after charge is made or when under this Code no charge is required, he shall
be acquitted in respect of such offence or offences.
Provided that the consent of the Central Government has to be obtained before a Public Prosecutor
or Assistant Public Prosecutor moves the Court for withdrawal of the case, whenever the offence
relates to a matter which the executive power of the Union extends or was investigated by the Special
Police Establishment or involves misappropriation, destruction or damage to the Central Government
property or is committed by Central Government Servant.

Procedure in cases which Magistrate cannot dispose of

Section 322, Cr.P.C.
If in the course of any inquiry or trial of an offence, it appears to the Magistrate.
(a) That he has no jurisdiction to try the case or commit it for trial
(b) That the case is one which should be tried or committed for trial by some other Magistrate in the
District.
(c) That the case should be tried by the Chief Judicial Magistrate.
The Magistrate shall stay the proceedings and report the matter to the Chief Judicial Magistrate.
Magistrate is not empowered to straightaway commit or transfer the case or commit the case to Chief
Judicial Magistrate.
(2) The Superior Magistrate to whom case is submitted may
(a) Either try the case himself or
(b) Refer it to any subordinate Magistrate having jurisdiction or
(c) Commit the accused for trial.

Procedure when, after commencement of inquiry or trial, Magistrate finds that the case
should be committed
Section 323, Cr.P.C.
This Section provides when after the commencement of the proceedings (i.e., at any time before
judgement is pronounced), it appears to the Magistrate that the case is one which ought to be tried by
the Court of Session, he shall commit the case to the Sessions Court (thereupon provisions of Chapter
XVIII shall apply.

76 Code of Criminal Procedure, 1973

Cross case which is not exclusively triable by the Court of Sessions and arising out of the same
incident can be committed by the Magistrate to the Court of Session. (Sudhir versus State of MP, AIR
2001 SC 826.)

Trial of persons previously convicted of offences against coinage, stamp law or property
Section 324, Cr.P.C.
This Section deals with the trial of accused persons who have been previously convicted of offences
against coinage and stamp law (Chapter XII of the Penal Code) or against property (Chapter XVII of
IPC), with imprisonment for a period of three year or more, is again accused of any offence punishable
with imprisonment of three years or upwards and the Magistrate is satisfied that there is ground for
presuming that he has committed the offence, accused shall be sent for trial to the Chief Judicial
Magistrate or committed to the Court of Session unless Magistrate himself can adequately punish the
accused.

Procedure when Magistrate cannot pass sufficiently severe sentence

Section 325, Cr.P.C.
(1) When a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused,
that accused is guilty and deserves a greater penalty than he himself can impose. If being a
Magistrate of the Second Class, is of opinion that the accused ought to be required to execute a
bond under Section 106, Cr.P.C., he may record the opinion and forward the accused to the Chief
Judicial Magistrate.
(2) Where more than one accused is being tried together, if any accused is to be forwarded for trial to
CJM, the Magistrate shall forward all the accused to the Chief Judicial Magistrate.
(3) The Chief Judicial Magistrate to whom the proceedings have been submitted has a discretion to
re-open the trial held by the subordinate Magistrate, or he can on those proceedings pass such
judgement, sentence or order in the case as he thinks fit.
The Chief Judicial Magistrate may commit the case to the Court of Session.
Exception to the cardinal principle of law in criminal trial is that it is a right of an accused that his case
should be decided by a Judge who has heard the whole of it

Section 326, Cr.P.C.

Section 326 makes it clear that upon evidence recorded by a predecessor Magistrate, the successor
magistrate is empowered to proceed from the next stage of the case and dispose of the same.
A transferee Court can summon witnesses already examined in the case for further examination and
not for fresh examination. (Ranbir Yadav versus State of Bihar, AIR 1995 SC 1219).

Open trial and trials in cameras

Section 327, Cr.P.C.
The place wherein any criminal Court is held for the purpose of inquiring into or trying any offence
shall be deemed to be open Court to which the public may have access subject to the orders of the
Trial Magistrate.
In a particular case, this Section empowers a Magistrate to exclude the public generally or any particular
person from the Courtroom. The power of the Court to hold certain trials in camera is associated with
the administration of justice. Trials in rape case shall be conducted in camera.

Code of Criminal Procedure, 1973 77

 Provided that the presiding Judge may, if he thinks fit, on an application of either party, allow any
particular person to have access to ‘or be remain in, the room or building used by the Court.
Provided further that in camera trial shall be conducted as far as practicable by a women Judge or
Magistrate.

PROVISIONS AS TO ACCUSED PERSONS OF UNSOUND MIND

Procedure for trial before court in case of person of unsound mind
Section 329, Cr.P.C.
If at the trial of any person before a Magistrate or Court of Session, it appears to the magistrate or
Court that such person is of unsound mind and consequently incapable of making his defence, the
Court or Magistrate, in the first instance, try the fact of is unsoundness mind, if after considering such
medical and other evidence, Magistrate is satisfied that he is of unsound mind, Magistrate or Court
shall record a finding to that fact thereafter shall postpone further proceedings in the case.
(a) If during trial, it appears to the Magistrate or Court that the accused is of unsound mind, the
Magistrate or Court shall refer such person to a psychiatrist or clinical psychologist and later shall
report to the Magistrate whether the accused is suffering from unsoundness of mind.
Provided that if the accused is aggrieved by the Report, he may prefer an appeal before the Medical
board.
(3) If it is informed to the Magistrate or Court that accused is of unsound mind, the Magistrate or Court
shall determine that he is incapable of entering his defence, the Magistrate or Court shall record a
finding to that effect and shall record the evidence of prosecution and to hear the defence counsel
but without questioning, the accused. If the Magistrate or Court finds that prima facie no case is being
made out, he or she shall, instead of postponing the trial, discharge the accused and deal with him in
the manner provided under Section 330.
Provided that if the Magistrate or Court finds that a prima facie case is being made out, he shall
postpone the trial of such a period, as in the opinion of the Psychiatrist or clinical psychologist, is
required for the treatment of the accused.
(4) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is
incapable of entering defence by reason of mental retardation, no trial shall be held and order be made
that the accused be dealt with in accordance with Section 330, Cr.P.C.

Section 330, Cr.P.C.

Whenever a person is by reason if unsoundness is incapable of entering his defence, the magistrate or
Court may release him on bail.
(2) If the magistrate is of the opinion that bail cannot be given without appropriate undertaking, he or
she shall order the accused to be kept in a place where regular psychiatric treatment can be provided.
(3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering defence
by reason of unsoundness of mind, if magistrate decides that accused be discharged, such release may
be ordered, if sufficient security is given that accused shall be prevented from doing injury to himself
or to any other person.
If the Magistrate is of opinion that discharge of an accused cannot be made, transfer to the accused to
residential facility for persons of unsound mind or mental retardation may be ordered wherein accused
may provide care and appropriate education and training.

78 Code of Criminal Procedure, 1973

PROVISIONS AS TO OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE
Procedure for offences mentioned in Section 195(1)(b), Cr.P.C.
Section 340 provides the procedure for offences enumerated in Section 195(1)(b), Cr.P.C. The Court can
initiate proceedings under Section 340, Cr.P.C. only for the offences mentioned in Section 195(1)(b).

Section 340, Cr.P.C.

Where an application is made to Court or otherwise, the Court is of opinion that it is expedient in the
interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-
section (1) of Section 195, Cr.P.C., which appears to have been committed in respect of a document
produced or given in a proceeding in that Court, such Court may, after preliminary inquiry, if as it thinks
necessary—
(a) Record a finding thereon
(b) make a complaint in writing
(c) send it to a Magistrate of the first class having jurisdiction.
(d) take sufficient security for the appearance of the accused before such Magistrate.
(e) Bind over any person to appear and give evidence before such Magistrate. A complaint made under
Section 340, Cr.P.C. shall be signed—
(a) Where the Court making the complaint is High Court, by such officers of the Court as the Court
may appoint.
(b) In any other case, by the Presiding Officer of the Court or by such officer of the Court as the
Court may authorise in writing on this behalf.
The Course of initiating an inquiry under Section 340, Cr.P.C. is adopted only if the interest of justice so
requires and not in every case.

Section 341, Cr.P.C.

Any person on whose application any Court, other than High Court has refused to make a complaint
under Section 340, Cr.P.C., or against whom such a Complaint has been made, may appeal to the Court
to which such former Court is subordinate, the Superior Court may direct withdrawal of complaint or
may make order for filing of complaint.
Section 341(2): An order passed in appeal under Section 340, shall be final and shall not be subject to
revision.
Section 342: Any Court dealing with an application made under Section 340 or an appeal under Section
341, shall have power to make such order as to costs as may be just.
Section 343: A Magistrate to whom a complaint is made under Section 340 or Section 341 shall deal
with the case as if it were instituted on a Police Report.
Where it is brought to notice to the Magistrate that an appeal is pending against the decision arrived
at in the judicial proceedings, Magistrate may adjourn the hearing of the case until such appeal is
decided.

Summary procedure for punishment for non-attendance by a witness in obedience to summons

Section 350, Cr.P.C.
If a witness is being summoned to appear before a Criminal Court and without just excuse neglects or
refuses to attend the Court or departs before which the witness appears is satisfied that it is expedient

Code of Criminal Procedure, 1973 79

 in the interest of justice that such a witness should be tried summarily. The Court may take cognizance
of the offence and after giving the offender an opportunity of showing cause, why he should not be
punished under this Section, sentence him to fine not exceeding one hundred rupees.
In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed
for summary trials.

THE JUDGEMENT
Delivery of Judgement
Section 353, Cr.P.C.
(1) After termination of trial, the Presiding Officer shall immediately pronounce Judgement in open
Court. At some subsequent time, notice shall be given to the parties or their pleaders.
(a) By delivering the whole of the judgement or
(b) Be reading out the whole judgement or
(c) By reading out the operative part of the judgement and explaining the substance of the
judgement in a language which is understood by the accused as a pleader.
(2) The Presiding Officer shall put his signature on every page of judgement and write on it the date
of the delivery of the judgement in Open Court.

Section 353(5), Cr.P.C.

If the accused is in custody, he shall be brought up to hear the judgement pronounced.
(6) If the accused is not in custody, he shall be required by the Court to attend to hear the Judgement,
except where his personal conduct during the trial has been dispensed with and the sentence is one
of fine only or he is acquitted.
Provided that where there are more accused than one and one or more of them do not attend the
Court on which the judgement is to be pronounced, the Presiding officer may, in order to avoid undue
delay in the disposal of the case, pronounce the judgement notwithstanding their absence.
(7) No judgement delivered shall be deemed to be invalid by reason only of the absence of the party or
his pleader or if there is any defect in serving notice regarding delivery of judgement.
(8) Nothing in this Section shall be deemed to limit in any way the extent of the Provisions of Section
465, Cr.P.C.

Language and contents of a judgement

Section 354, Cr.P.C.
Every Judgement—
(a) Shall be written in the language of the Court.
(b) Shall contain the point or points for determination, the decision thereon and the reasons for the
decision.
(c) The offence, sections of Indian Penal Code and or other law shall be specified, under which the
accused is convicted.
(d) If judgement is of acquittal, the offence of which accused is acquitted shall be stated in the
judgement.

80 Code of Criminal Procedure, 1973

(3) The judgement shall state reasons for the sentence awarded and in case of death sentence, the
Special reasons has to be stated.
(4) Where the conviction is for an offence which is punishable with imprisonment for a term of one year
or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it
shall record its reasons for awarding such sentence. But if the sentence is one of imprisonment till the
rising of the Court to the case is tried summarily, no reasons are required to be recorded.
(5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck
till he is dead.
(6) Every order under Section 117, 138(2) and every final order under Section 125, 145, 147, shall contain
the point or points for determination the decision thereon and the reasons for the decision.
Section 355, Cr.P.C. lays down that the metropolitan Magistrate need not write a detailed judgement as
provided in Section 354, Cr.P.C. But Metropolitan Magistrate should record only the particulars set out
in the Section 355, clause (1) of Section 355 makes it obligatory that metropolitan magistrate should
give a brief statement of the reasons for his decision in all cases in which an appeal lies.

Court can award compensation to the Victim

Section 357 - Under this Section an order of compensation can be passed by the Trial Court, Appellate
Court or by the High Court or Court of Session in Revision, at the time of passing judgement, out of the
fine imposed, in four cases:—
(a) To the complainant, for meeting expenses properly incurred in the prosecution.
(b) To any person who has suffered loss or injury by the offence, when he can recover compensation
in Civil Court.
(c) To a person entitled to recover damages under the Fatal Accident Act, when there is a conviction
for causing death abatement thereof.
(b) To a bona fide purchaser of property, which has become the subject of theft, criminal misappropriation,
criminal breach of trust, cheating, or receiving or retaining or disposing of stolen property, and
which is ordered to be restored to its rightful owner.
Section 357(1) is applicable to cases where fine forms part of the sentence, whereas under Section
357(3), the Court can direct the convicted person to pay compensation even in cases where fine does
not form part of the sentence. Arun Garg versus State of Punjab, (2004) 8 SCC 251 (261).

Provisions regarding victim compensation Scheme

Section 357A Cr.P.C.
(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 Legal Service
Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of
compensation to be awarded under the Scheme referred to in sub-section (1).
(3) If the Trial Court is satisfied that the compensation awarded under Section 357 is not adequate, it
may make a recommendation for compensation.
(4) When the offender is not traced, the victim or his dependents may make an application to the
State or the District Legal Services Authority for award of compensation.

Code of Criminal Procedure, 1973 81

 (5) On the receipt of the application or recommendation, the State or District Legal Services Authority
shall, after due inquiry, award adequate compensation by completing the enquiry within two
months.
(6) The State or District Legal Service Authority may order for immediate first aid facility or medical
benefits free of cost to the Victim.

Section 357B, Cr.P.C.

The compensation payable by the State Government under Section 357A, shall be in addition to the
payment of fine to the victim under Section 326A, Section 376 AB, Section 376D, Section 376 DA,
Section 376 DB of the Indian Penal Code.
Section 357C: (Treatment of victims) - All Hospital, 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 Section 326A,
Section 376, 376A, Section 376 AB, Section 376B, Section 376C, Section 376D, Section 376 DA, Section
376 DB, 376E of the IPC and shall immediately inform the police of such incident.

Court can release the accused, who has been convicted, on probation of good conduct
Section 360, Cr.P.C.
(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine
only or with imprisonment for a term of seven years or less, or when any person under twenty-one
years of age or any women is convicted of an offence (not punishable with death or imprisonment for
life), and no previous conviction is proved against the offender, if it appears to the Court, regarding
being had to the age, character or antecedents of the offender, and to the circumstances in which
the offence was committed, that it is expedient that the accused be released on probation of good
conduct, the Court may, instead of passing sentence release him on his entering a bond with or without
sureties that in the meantime he would keep peace or be of good behaviour during such period (not
exceeding three years). If the offender makes a breach of the conditions of the bond, he would appear
and receive a sentence when called upon during such period.
Provided that when an offender is convicted by the Magistrate of the Second Class who is not
empowered to exercise powers conferred under this section, he shall submit the proceedings before
a magistrate of the First Class.
(2) Where proceedings have been submitted, the Magistrate of the First Class may pass such a sentence
as he thinks fit.
(3) (i) When any person is convicted of theft,
(ii) Theft in a building
(iii) Dishonest misappropriation
(iv) Cheating
(v) Or of any offence under Indian Penal Code, punishable with not more than two years’ imprisonment
or any offence punishable with fine only and no previous conviction is proved.
The Court may, if it thinks fit, having regard to the age, character antecedents or physical or mental
condition of the offender and to the trivial nature of the offence or any extenuating circumstances
under which the offence was committed, instead of sentencing him to any punishment, release him
after due admonitions.

82 Code of Criminal Procedure, 1973

(4) An order this Section may be made by any Appellate Court or by the High Court or Court of Session
when exercising its power of Revision.
(5) The High Court or Court of Sessions may, on appeal when there is right of appeal to such Court,
or when exercising its powers of revision, set aside such order (probation or admonition), and in lieu
thereof pass sentence on such offender according to law.
(8) If the Court which convicted the offender, is satisfied that the offender has failed to observe any
of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) Any offender, when apprehended on any such warrant, shall be brought before Court, and such
Court may remand him in custody or admit him on bail with a sufficient surety conditioned on his
appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this Section shall affect the provisions of the Probation of Offenders Act, 1958, or
the Children Act, 1960, or any other law for the time being in force for the treatment, training or
rehabilitation of youthful offenders.
Section 361, Cr.P.C. Special reason to be recorded in certain cases:—Where in any case the Court could
have dealt with—
(a) an accused under Section 360 or under the provisions of the Probation of Offenders Act, 1958.
(b) a youthful offender under the Children Act, 1960 or any other law for the time being in force for
the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record
in its judgement the special reasons for not having done so.

Court can alter or its judgement or final order

Section 362, Cr.P.C.
Section 362 prohibits the Court from altering or revising any judgement or final order disposing of a
case after it has been signed except for the purpose of correction or clerical or arithmetical error. The
embargo under Section 362 does not operate against interlocutory order and a Magistrate can pass a
different order at a later stage.

Copy of judgement be given to the accused and other

Section 363, Cr.P.C.
When the accused is sentenced to imprisonment, a copy of the judgement, shall, immediately after
the pronouncement of the judgement, be given to him free of cost. On application of the accused, a
Certified copy of the judgement shall, in every case where the judgement is appealable by the accused,
by given free of cost.
Provided that where a sentence of death is passed or confirmed by the High Court, a certified copy of
the judgement shall be immediately given to the accused free of cost the Court shall also inform him
of the period within which his appeal shall be preferred.
Any person affected by the judgement or order, Court shall, on payment of prescribed charges, give him
a copy of the judgement or order.
Provided that the Court may, if it thinks fit for special reasons, give it to him free of cost.
The High Court may frame rules for the grant of copies of judgement or order to any person who is not
affected by a judgement or order, on payment of prescribed fee.

Code of Criminal Procedure, 1973 83

 SUBMISSION OF DEATH SENTENCES FOR CONFIRMATION
Provisions regarding submission of death sentences for confirmation
Section 366, Cr.P.C.
When the Court of Session passes a sentence of death, it shall not be executed unless it is confirmed
by the High Court.
(2) The Court passing the sentence shall commit the convicted person to jail under a warrant (i.e.,
warrant of commitment under sentence of death).
Section 367: When proceedings are submitted before Court, High Court may make further inquiry or
take additional evidence. The High Court may itself make an inquiry or take evidence or may direct it
to be made or taken by the Court of Sessions.
Section 368: In any case submitted under Section 366, the High Court—
(a) May confirm the sentence, or pass any other sentence warranted by law, or
(b) May annul the conviction, and convict the accused of any offence of which the Court of Sessions
might have convicted him, or order a new trial on the same or an amended charge, or
(c) May acquit the accused person.
Provided that no order of confirmation shall be made under this Section until the period allowed for
preferring on appeal has expired or, if an appeal is presented within such period, until such appeal is
disposed of.
Section 369: In every case so submitted, the confirmation of the sentence, or any new sentence or
order passed by the High Court, shall, when such Court consists of two or more judges, be made,
passed and signed by at least two of them.
Section 370: Where any case is heard before the Bench of Judges and such Judges are equally divided
in opinion, the case shall be decided as provided by Section 392, Cr.P.C.
Section 371: When the sentence of death has been confirmed, the High Court shall, without delay, send
a copy of the order, to the Court of Session.

APPEALS
There is no right of Appeal unless it is provided
Section 372, Cr.P.C.
No Appeal shall lie from any judgement or order of a Criminal Court except
(a) as provided for by this Code or
(b) by any other law for the time being in force.
Provided that the victim shall have a right to prefer an appeal:
(a) An order passed by the Court acquitting the accused or
(b) Convicting for a lesser offence or
(c) Imposing inadequate compensation.
Such Appeal shall lie to the Court to which an Appeal ordinarily lies against the order of conviction of
such Court.

Section 372, Cr.P.C.

In a judgement titled Pravinder Kansal versus State (NCT) of Delhi, date of decision 27-11-2019, SCC
online 2019 Del 11508, Delhi High Court has reiterated that it is settled law that an appeal is a creature
of a statute and cannot lie under any inherent power. It was noted that the proviso to Section 372,

84 Code of Criminal Procedure, 1973

Cr.P.C. (no appeal to lie, unless otherwise provided) confers upon the victim, the right to prefer an
appeal against the order of the criminal court in the following three instances—
(a) acquittal of the accused person,
(b) conviction of the accused person for a lesser offence,
(c) imposition of adequate compensation.
Relying on a catena of decisions, including that of the Supreme Court in National Commission for
Women versus State (NCT of Delhi), (2010) 12 SCC 599, the Delhi High Court restated ‘ An appeal by the
victim under Section 372, Cr.P.C., is not maintainable if it only challenges the order on sentence on the
ground that it imposes inadequate punishment ‘
In view of such a mandate of law, the High Court held that in the instant appeal the inadequacy of
sentence awarded to the convict had been challenged and therefore not maintainable under provision
to Section 372, Cr.P.C.
Section 373, Cr.P.C. – Appeal from orders requiring security or refusal to accept or rejecting surety for
keeping peace or good behaviour:
Any person—
(i) Who has been ordered under Section 117, Cr.P.C. to give security for keeping the peace or for good
behaviour or
(ii) who is aggrieved by any order refusing to accept or rejecting a surety under Section 121, Cr.P.C. may
appeal against such order to the Court of Session.

Section 374, Cr.P.C. Appeal from convictions

This Section lays down different forums for filing appeals, against the order of conviction.
(1) If a trial is held by a High Court in extraordinary Criminal jurisdiction, an appeal would lie to the
Supreme Court.
(2) If a trial is held by a Sessions Judge or an Additional Sessions Judge or by any other Court in which
a sentence of imprisonment of more than seven years has been passed, an appeal would lie to the
High Court.
(3) If a trial is held by a Metropolitan Magistrate or Assistant Session Judge or Magistrate of the first
or second class [Except cases falling under sub-section (2)], or in cases falling under Section 325
and Section 360, an appeal would lie to the Court of Session.
(4) When an appeal has been filed against a sentence passed under Section 376, Section 376A, Section
376 AB, Section 376B, Section 376C, Section 376D, Section 376 DA, Section 376 DB or Section 376E
of the IPC, the appeal shall be disposed of within a period of six months from the date of filing of
such appeal.

Cases when there is no right of appeal

Section 375, Cr.P.C.
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 Court of Session, Metropolitan Magistrate or Magistrate of the First or
Second Class except as to the extent or legality of sentence.

Code of Criminal Procedure, 1973 85

 Section 376 - No Appeal in petty cases
There shall be no appeal by a convicted person in any of the following cases:—
(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six months
or of fine not exceeding one thousand rupees, or of both such imprisonment and fine.
(b) where a court of session or metropolitan magistrate passes only a sentence of imprisonment for
a term not exceeding three months or of fine not exceeding two hundred rupees, or of both such
imprisonment and fine.
(c) where a magistrate of the first class passes only a sentence of fine not exceeding one hundred
rupees.
(d) where, in a case tried summarily, a magistrate empowered to act under Section 260, Cr.P.C. passes
only a sentence of fine not exceeding two hundred rupees.
Provision to Section 376, Cr.P.C. provides that an appeal may be brought against any such sentence
(clause A, 6 and 8 of Section 376, Cr.P.C.) if any other punishment is combined with it.
Section 31(3) of Cr.P.C. declares that for the purpose of appeal an aggregate of consecutive sentences
passed against the accused shall be deemed to be a single sentence.
But sentences mentioned in clause (a) (b) (c) and (w) of Section 376, Cr.P.C. would not be appealable
merely on the ground—
(1) that the person convicted is ordered to furnish security to keep the peace or
(2) that a direction for imprisonment in default of payment of fine is included in the sentence.
(3) That more than one sentence of fine is passed in the case, if the total amount of fine imposed
does not exceed the amount hereinbefore specified in respect of the case.

State Government can file appeal against sentence or in case of conviction

Section 377, Cr.P.C. The State Government may, in case of conviction on a trial held by any court other
than a High Court, direct the public prosecutor to present an appeal against the sentence on the
ground of its inadequacy.
(a) to the court of session, if the sentence is passed by the magistrate and
(b) to the High Court, if the sentence is passed by any other court.
(2) if such conviction is in a case in which the offence has been investigated by the Delhi special police
establishment or by any other agency empowered to make investigation into an offence under any
Central Act other than the Code, the Central Government may also direct the public prosecution to
present an appeal against the sentence on the ground of its inadequacy—
(a) To the court of session, if the sentence is passed by the magistrate and
(b) to the High Court, if the sentence is passed by any other court.
(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the court of
session or the High Court, as the case may be, shall not enhance the sentence except after giving to
the accused a reasonable opportunity of showing cause against such enhancement and while showing
cause, the accused may plea for his acquittal or for the reduction of sentence.
(4) When an appeal has been filed against a sentence passed under Section 376, Section 376A, Section
376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 376E of the
IPC, the appeal shall be disposed of within a period of six months from the date of filing of such appeal.

86 Code of Criminal Procedure, 1973

Appeal can be preferred by State Government in case of acquittal
Section 378, Cr.P.C.
(1) (a) The District Magistrate may direct the public prosecutor to present an appeal to the court of
session from an order of acquittal passed by a magistrate, in respect of a cognizable and non-
bailable offence.
(b) The State Government may direct the public prosecutor to present an appeal to the High Court
from an original or appellate order of an acquittal passed by any court other than a High Court.
[But the State Government would not direct for presenting] an appeal regarding an order under
clause (a) or an order of acquittal passed by the court of session in revision].
(2) If such an order of acquittal is passed in any case, in which the offence has been investigated by the
Delhi special police establishment or by any other agency empowered to make investigation into
an offence under any Central Act, the Central Government may also direct the public prosecutor
to present an appeal—
(a) To the court of session, from an order of acquittal passed by a magistrate in respect of a
cognizable and non-bailable offence.
(b) To the High Court from an original or appellate order of an acquittal passed by any court other
than a High Court. [not being an order under clause (a) or an of acquittal passed by the court
of session in revision]
(3) No appeal to the High Court under sub-section (1) or sub-section [Section 378, Cr.P.C.] shall be
entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in a complaint case, on an application made to it by the
complainant in this behalf, High Court grants special leave to appear from the order of acquittal,
the complaint may present an appeal to the High Court against an order of acquittal.
(5) A application for the grant of special leave to appeal from an order of acquittal shall not be
entertained by the High Court after the expiry of sex months, where the complainant is a public
servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If an application for the grant of special appeal from an order of acquittal is refused, no appeal
from that order of acquittal shall lie under sub-section (1) or under sub-section (2) of Section 378
of Cr.P.C.

High Court can reverse an order of acquittal or appeal against conviction -Section 379 Cr.P.C
Where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted
him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years
or more, that person may appeal to the Supreme Court.

Special right of appeal in certain cases – Section 380, Cr.P.C.

Where more persons than one are convicted in one trial, and an appealable judgement or order has
been passed in respect of any of such persons, all or any of the persons convicted at such trial shall
have a right of appeal.
An accused person whose sentence is unappealable has a right of appeal under this sentence.

Appeal to court of session - Section 381, Cr.P.C.

Appeal to the court of session or session judge shall be heard by the session judge or by an additional
session judge.

Code of Criminal Procedure, 1973 87

 Provided that appeals arising against conviction on a trial held by a magistrate of the second class
could be heard and disposed by an assistant session judge or by a chief judicial magistrate. It is only
these appeals that have been made over to them by the sessions judge or High Court, by special order,
has directed them to hear.

Petition of appeal - Section 382, Cr.P.C.

Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader,
and every such petition shall be accompanied by a copy of the judgement or order appealed against.

Procedure when appellant in jail - Section 383

If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same
to the officer-in-charge of the jail, who shall thereupon forward such petition and copies to the proper
appellate court.

Summary dismissal of appeal

Section 384, Cr.P.C.
(1) On presentation of appeal under Section 382 or under Section 383 officer-in-charge of jail, the
appellate court considers that there is no sufficient ground for interfering, it may dismiss the
appeal summarily.
Provided that
(a) On appeal presented under Section 382, Cr.P.C. by appellant himself or through his pleader shall
not be dismissed unless the appellant or his pleader has been given a reasonable opportunity
of hearing.
(b) An appeal presented under Section 383, Cr.P.C. (through an officer-in-charge of jail) shall not
be dismissed unless an opportunity of hearing has been given to the appellant if the appellate
court considers that the appeal is frivolous or appearance of the accused from custody would
cause inconvenience the court may dismiss appeal summarily without giving an opportunity of
being heard.
(c) Appeal presented under Section 383, Cr.P.C. shall not be dismissed summarily until the period
allowed for preferring such appeal has expired.
Before dismissing an appeal under this section, the court may call for the record of the case.
(3) Where the appellate court dismissing an appeal under this section is a court of session or of the
chief judicial magistrate, it shall record its reasons for doing so.
(4) If an appeal presented under Section 383, Cr.P.C. [through an officer-in-charge of jail] having been
dismissed summarily but another appeal has also been filed under Section 382, Cr.P.C. by the
appellant himself or through his pleader and the same having been considered by the appellate
court, that court may, notwithstanding anything contained in Section 393, Cr.P.C. if satisfied that
it is necessary in the interest of justice so to do, hear and dispose of such appeal in accordance
with law.

Procedure for hearing appeals if not dismissed summarily

Section 385, Cr.P.C. If the appeal has not been summarily dismissed, notice shall be issued to the
following—
(I) To the appellant or his pleader
(II) To public prosecutor

88 Code of Criminal Procedure, 1973

(III) If the appeal has been presented in a complaint case, to the complainant.
(IV) If the appeal is under Section 377 or under Section 378, Cr.P.C. to the accused. Copy of grounds of
appeal shall also be furnished to the public prosecutor, complainant and accused.
(2) The appellate court shall then send for the record of the case. [If such record is not already available
in that court] and hear the parties.
Provided that if the appeal is only as to the extent or the legality of the sentence, the court may
dispose of the appeal without sending for the record.
(3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the
appellant, shall not, except with the leave of the court, urge or be heard in support of any other ground.

Powers of the appellate court

Section 386, Cr.P.C.
After perusing record and hearing appellant or pleader and to the public prosecutor, in case appeal is
under Section 377 or under Section 377 or under Section 378, Cr.P.C. to the accused, it appears to the
appellate court that there is no sufficient ground for interfering, it may dismiss the appeal or may also
deal with the appeal in the following manner—
(A) If appeal is from an order of acquittal, reverse such order and direct that further inquiry be made
or accused be retried. If the appellate court finds him guilty, pass a sentence on him according to
law.
(B) If appeal is from an order of conviction—
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-
tried by a court of competent jurisdiction subordinate to such appellate court or committed
for trial.
(ii) alter the finding and maintain the sentence.
(iii) with or without altering finding, alter the nature and extent of sentence. But the sentence
would not be enhanced.
(C) In an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or discharge the accused or order to be re-tried
by a competent court, alter the finding and maintain the sentence.
(ii) with or without altering the finding, alter the nature or extent of the sentence, so as to enhance
or reduce the same.
(D) In an appeal from any other order
(i) alter or reverse such order.
(E) Make any amendment or any consequential or incidental order that may be just and proper.
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of
showing cause against such enhancement.
Provided further that the appellate court shall not inflict greater punishment for the offence than
might have been inflicted for that offence by the court passing the order or sentence under appeal.
The dismissal of appeal for default/non-prosecution is not contemplated in Cr.P.C. such an order is
non-est. Bani Singh versus State of UP, AIR 1996 SC 2439.

Code of Criminal Procedure, 1973 89

 Rules of the judgements of Subordinate appellate court
The rules contained in Chapter XXVII as to the judgement of a criminal court of original jurisdiction
shall apply, so far as may be practicable, to the judgement in appeal of the court of session or chief
judicial magistrate.
Provided that unless the appellate court otherwise directs, the accused shall not be brought up, or
required to attend, to hear the judgement delivered.
In a judgement title Pritika Fashion Pvt Ltd versus State, CRL.M.A 33858/2018, date of decision, Delhi
High Court has held - where accused was convicted by trial court, he may apply for suspension of
sentence and court may suspend sentence for a period of one month for filing appeal under Section
389(3), Cr.P.C. If appeal is filed against conviction under Section 374, Cr.P.C., the appellate court may
suspend sentence during the pendency of appeal under Section 389, Cr.P.C. After passing judgement
of appeal, the accused is being convicted and lower court judgement is being upheld, the appellate
court has no power to suspend sentence under Section 389(3), Cr.P.C., but appellate court has to take
the accused/appellant in custody. In the present case the accused was not present before appellate
court at the time the judgement was pronounced. Regarding proviso to Section 387 of Cr.P.C., it is not
mandatory upon the appellate court to direct the accused to be brought up or required to attend, to
hear the judgement delivered because the word “shall not” incorporated in the proviso. However, this
proviso is required to be read in light of Section 387 read with Sections 353(5) and 353(6), Cr.P.C. But
the accused has been convicted by two courts despite that he has not made an appearance before a
subordinate appellate court and therefore his sentence cannot be suspended by the High Court in the
present revision petition and therefore the revision petition was dismissed.

Conviction/sentence can be suspended

Section 389, Cr.P.C.
(1) If any appeal is pending, the appellate court, after recording reasons, may suspend execution of
sentence that has been passed by lower court. If the accused is in confinement may order for his
release from jail.
Provided that the appellate court, before making an order of release, shall hear the public prosecutor,
if the accused has been convicted with death or imprisonment for life or imprisonment for a term
of not less than ten years.
Provided that in cases where a convicted person is released on bail, it shall be open to the public
prosecutor to file an application for the cancellation of the bail.
(2) The power conferred by this section on an appellate court may also be exercised by the High Court.
(3) Where the convicted person satisfies the court by which he is convicted that he intends to present
an appeal, the court shall:—
(i) where the convicted person is on and having been sentenced to imprisonment for a term not
exceeding three years.
(ii) where the offence for which he has been convicted is a bailable one and he is on bail.
Order that the convicted person be released on bail, unless there are special reasons for refusing
bail, the person shall be released on bail for such a period as to afford him sufficient time to
present appeal, the sentence of imprisonment shall, so long as he is so released on bail, be
deemed to be suspended.

90 Code of Criminal Procedure, 1973

(4) When the appellant is ultimately sentenced to imprisonment for a term or imprisonment for life,
the time during which he is released shall be excluded in computing the term for which he is
sentenced.
Where a person is sentenced to short term imprisonment, the normal rule is that pending appeal
sentence should be suspended and rejection is only way of exception [Bhagwana Ram Shinde versus
State of Gujarat, 1999 (39) ACC 302 (SC)]
The court of session after hearing the appeal cannot give time to accused to surrender because it
indirectly tantamount to suspending the sentence or releasing the convicted accused on bail the
moment the session court dismisses the appeal, it follows that the accused whose appeal has been
dismissed has to surrender to serve out the sentence imposed upon him. It is only the High Court
which can pass appropriate orders in this regard. [Arvind Maneklal Bhagat versus State of Gujarat, 1987
(3) Crimes 910 (Guj)]

Power of appellate court to take further evidence/additional evidence or direct it to be taken

Section 391, Cr.P.C.
(1) The appellate court may take additional evidence if it thinks it is necessary, the appellate court
can take additional evidence after recording its reasons and it may direct evidence to be taken by
a magistrate, or when the appellate court is a High Court, by a court of session or magistrate.
(2) When the additional evidence is taken by the court of session or by the magistrate, it or he shall
certify such evidence to the appellate court, and such court shall thereupon proceed to dispose
of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is
taken.
(4) The taking of evidence under this section shall be subject to the provision of Chapter XXIII, as if it
were an inquiry.
The appellate court has power to take additional evidence in a suitable case, but the power should not
be exercised to fill up gaps in the prosecution case.

Procedure where judges of court of appeal are equally decided

Section 392, Cr.P.C.
When an appeal is heard by a High Court before a bench of judges, they are divided in their opinion. The
matter shall be laid before a third judge, the opinion given by that judge shall be final.
Provided that if one of the judges of the constituting the bench or the third judge, hearing the appeal
so desires, the appeal may be referred to a large bench.

Finality of judgements and order on appeal - Section 393, Cr.P.C.

Judgements and orders passed by an appellate court upon an appeal shall be final, except in The case
provided for in Section 377, Section 378, sub-section (4) of Section 384 or Chapter XXX.
Provided that even though the appeal against conviction is finally disposed of, the appellate court has
still power to hear and dispose of an appeal filed by government against the order of acquittal as well
as against the inadequacy of sentence in the same case.

Abatement of appeals – Section 394, Cr.P.C.

(I) Every appeal under Section 377 or Section 378, Cr.P.C. shall finally abate on the death of the
accused.

Code of Criminal Procedure, 1973 91

 (II) Every appeal under this Chapter [except an appeal from a sentence of fine] shall finally abate on
the death of the complainant.
Provided that where the appeal is against a conviction and sentence of death or of imprisonment and
the appellant dies during the pendency of the appeal, any of his near relative may, within thirty days
of the death of the appellant, apply to the appellate court for leave to continue the appeal, and if the
leave is granted, the appeal shall not abate.
Explanation: In this section near relative means a parent, spouse, level descendant, brother or sister.
Appeal from sentences of fine may be continued by the legal representatives of the deceased appellant.
[Bondada Gajapathe Rao versus State of AP, AIR 1964 SC 1645]
The principle on which the hearing of a proceeding may be continued after the death of an accused
would appear to be the effect of the sentence on his property in the hands of his legal representatives.
If the sentence affects that property, the legal representatives can be said to be interested in the
proceedings and allowed to continue it. [Bondada Gajapathe Rao versus State of AP, AIR 1964 SC 1645]

REFERENCE AND REVISION

Reference can be made to High Court
Section 395, Cr.P.C.
(1) When any court is satisfied that a case pending before it involves a question as to the validity of any
act, ordinance or regulation or of any of the provisions contained thereon, the determination of which
is necessary for the disposal of the case. Such Act, ordination and regulations any provision invalid
or inoperative, but has not been so declared by High Court or Supreme Court. The court shall state a
case, setting out its opinion and the reasons therefore, and refer to the same for the decision of the
High Court.
(2) A court of session or Metropolitan magistrate may make reference to the High Court on a question
of law which has then arisen in the hearing of the case [i.e., a case which is pending before court of
session or metropolitan magistrate].
(3) Any court making a reference may either commit the accused to jail or release him on bail to appear
when called upon until the decision is pending before the High Court.

Section 396, Cr.P.C.

(1) When a question has been referred, the High Court shall pass such an order as it thinks fit and
thereafter a copy of the order shall be sent to the court by which reference was made, which shall
dispose of the case conformably to the said order.
(2) The High Court may direct by whom the costs of such reference shall be paid.
Revision jurisdiction of High Court and session court

Section 397, Cr.P.C.

Confers revision power on the High Court of session court, as the case may be. The object of the
revision jurisdiction under Section 401 is to confer power upon superior criminal court [i.e., High Court],
a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice.

Section 397, Cr.P.C.

The High Court of session judge may call for and examine the record of any proceeding before any
inferior criminal court, for the purpose of satisfying itself or himself as to the correctness, legality or

92 Code of Criminal Procedure, 1973

propriety of any finding, sentence or order, and as to the regularity of any proceedings of such inferior
court. Meanwhile, the High Court of session court may direct execution of any sentence or order be
suspended and if the accused is in confinement, that he be released on bail or on his own bond till
pending the examination or the record.
The power of revision conferred by sub-section (1), shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other proceeding.
Under Section 397, Cr.P.C. power has been given to the High Court and session court simultaneously.
The party concerned can avail of any of the two remedies but not both. Availability of remedy once
before either court, bars second revision to the other court.
Where the session court dismissed the application for maintenance on revision by husband, subsequent
revision by wife before the High Court is maintainable [Bakulabai versus Gangaram, 1988 (1) SCC 537].
Bar to a second revision applies to the same revision petitioner and not to other persons.
Whether in a revision under Section 397 of the Code of Criminal Procedure, arising out of conviction,
the High Court could have, even while affirming the conviction, taken away the right of the employer
to exercise disciplinary control over an employee, on the basis of the conviction by the criminal court.
The Supreme Court, on 6th December, 2019, in the matter of New India Assurance Co Ltd versus Krishna
Kumar Pandey pronounced that revisional power under Sections 397 and 401 of Cr.P.C. cannot be
converted into the power of superintendence over the employer of the person accused. None of the
provisions of Sections 397 to 401 confer any power upon the High Court to declare that there shall be
no civil consequences, resulting from the conviction.

Section 399, Cr.P.C. Session Court’s power of revision

Section 399 deals with the powers of the Sessions Judge while hearing a case of which record has
been called for by himself. The said powers are the same as that of the High Court under Section 401,
Cr.P.C. Once the Session has been moved the jurisdiction of the High Court is ousted.

Section 401, Cr.P.C. High Court’s power of revision

Under this Section, the High Court may interfere to test the correctness, legality or even the propriety
of any finding, sentence or order. It can exercise all the powers of an Appellate Court. However some
limitations has been placed on the revisional jurisdiction which are under:—
(1) That finding of acquittal cannot be converted into a finding of conviction.
(2) The enhancement of sentence must be governed by the second proviso of Section 386.
(3) No order shall be made to the prejudice of the accused.
If an appeal lies, no proceeding by way of revision shall be entertained.
Where under the Code, an appeal lies but revision application has been moved under the erroneous
belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High
Court may treat the application for revision as a petition of Appeal and deal with the same accordingly.
Thus High Court in its revisional jurisdiction can exercise any of the powers conferred on a Court of
Appeal and though under Section 386(a) the High Court as an Appellate Court is entitled to record a
conviction by reversing the order of acquittal, yet the express provision of sub-section (3) of Section
401, which enacts that nothing in this section shall be deemed to authorise a High Court to convert a
finding of acquittal into one of conviction, cannot be ignored. The Revision jurisdiction operates within
narrow limits and can be exercised only in exceptional cases where the interest of public justice

Code of Criminal Procedure, 1973 93

 requires interference for the corrections of a gross miscarriage of justice. It cannot be exercised
because the lower Court has taken a wrong view of the law or non-appreciated evidence on record.
(Satyendera Nath versus Ram Narain, AIR 1975 SC 580).
Section 402: High Court and the Sessions Judge possess revisional power, whenever more persons
are convicted at one trial, some accused may come in revision before the High Court and other before
the Sessions Judge. The High Court shall decide which of the two courts should finally dispose of the
revision applications. Once the High Court transfers the revision application to the Sessions Judge and
it is disposed of by him, no further revision will lie to the High Court.

Difference between Revision and Appeal

(1) In appeal the High Court can convert an acquittal into a conviction and vice versa, but in revision,
it cannot convert a finding of acquittal into one of conviction.
(2) The power of Revision is wider than that of appeal because under the Revisional jurisdiction the
High Court can correct even irregularities or improprieties of procedure.
(3) In case of Appeal, the High Court will interfere if it is satisfied as to the guilt of the accused but in
revision it will interfere only if it is brought to the notice that there has been miscarriage of justice.
(4) An appeal cannot be dismissed without affording the appellant or his pleader a reasonable
opportunity of being heard. In revision, however, the accused or the other person must be heard
either personally or through his pleader in case an order to his prejudice is to be passed.

TRANSFER OF CRIMINAL CASES

Power of Supreme Court to transfer cases and Appeals
Section 406, Cr.P.C.
The Supreme Court may direct that any particular case or appeal be transferred from one High Court
to another High Court or from one criminal court to another criminal Court of equal or superior
jurisdiction (i.e., subordinate to one High Court and another High Court), if it appears to the Court that
it is expedient for the ends of justice.
The Supreme Court may act on the application of the Attorney-General of India, or a party interested.
If an application is made by a party, it shall be supported by an affidavit or affirmation.
If the application is frivolous and vexatious and having been dismissed, the Supreme Court may order
the applicant to pay compensation (not exceeding one thousand rupees) to any person who has
opposed the application.

Power of High Court to transfer cases and Appeals

Section 407, Cr.P.C.
Whenever it is made to appear to High Court—
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court.
(b) That an under this Section is required by any provision of the Code or will tend to general
convenience of the parties or witnesses or is expedient for the ends of justice.
The High Court may order
(i) That any offence be inquired into or tried by a Court otherwise competent though not empowered
under Section 177 to 185.
(ii) That any case or appeal be transferred to another criminal Court or order a stay of proceedings.

94 Code of Criminal Procedure, 1973

(iii) That any case be committed to a Court of Session.
(iv) That any case or appeal be transferred to itself.
(2) The High Court may act either on the report of the lower Court or on the application of the party
interested, or on its own initiative.
Provided that no application can be filed before the High Court for transferring a case from one
Criminal Court to another Criminal Court in the same session division unless earlier application has
been rejected by the Session Judge.
(3) An application shall be supported by an affidavit except when application has been made by
Advocate-General of the State.
(4) An accused is competent to make an affidavit in support of his transfer application. The Public
Prosecutor is entitled to have notice of it at least twenty-four hours in advance.
(5) When an application is for transfer of appeal from a subordinate Court, the High Court may, in the
interest of justice, stay the proceedings of the subordinate Court.
(6) Where an application under sub-section (1) is dismissed and High Court is of opinion that application
was frivolous and vexatious, High Court may order the applicant to pay compensation (not exceeding one
thousand rupees) to the person who opposed the application on the application of a party interested,
or on his own initiative.

Power of Session Judge to transfer cases and appeals and to withdraw cases and appeals
Section 408, Cr.P.C.
(1) Whenever it is made to appear to the Sessions Judge that an order under this sub-section is
expedient for ends of justice, he may order that a particular case be transferred from one criminal
court to another criminal court in his sessions division.
(2) The session Judge may act either on the report of the lower court, or on the application of a party
interested, or on his own initiative.
(3) The Provisions of sub-section (3), (4), (5), (6), (7) and (9) of Section 407, Cr.P.C. shall apply in
relation to an application to the Sessions Judge, except under sub-section (7) of Section 407
words one thousand rupees has mentioned and the words two hundred and fifty rupees having
been substituted.

EXECUTION, SUSPENSION, REMISSION AND COMMUTATION OF SENTENCES

Procedure for recovery of fine
Section 421, Cr.P.C.
When an offender has been sentenced to pay fine, the Court passing the sentence may recover fine in
any of the following ways:—
(a) issue a warrant for the recovery of the amount by attachment and sale of any movable property
belonging to the offender.
(b) Issue a warrant to the Collector of the District, authorising him to realise the amount as arrears of
land revenue from the movable or immovable property, or both, of the defaulter.
Provided that if the sentences direct that in default of payment of fine, the offender shall be imprisoned,
and if the offender has undergone the whole of such imprisonment in default, no Court shall issue
recovery warrant unless for special reasons to be recorded in writing and Court considers it necessary

Code of Criminal Procedure, 1973 95

 to do so. But if an order has been made for the payment of expenses or compensation out of the fine
under Section 357, Cr.P.C., recovery warrant can be issued for the same.
(2) The State Government may make rules regulating the manner in which warrants under clause (a) of
sub-section (1) of Section 421, Cr.P.C. are to be executed.
(3) When a Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector
shall realise the amount in accordance with law relating to recovery of arrears of land revenue.
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
Power of the Court to give time for payment of fine

Section 424, Cr.P.C.

Empower the Court to give time, not exceeding thirty days, to an offender who has been sentenced to
pay a fine. The Court may also grant time for payment of fine by instalments.
When a Court passes a sentence of the fine upon an accused and in default to suffer imprisonment,
the fine is to be paid forthwith, that is to say, on the sentence being pronounced. It is, however, open
to a Court to proceed under this Section and if a Court does act under its provisions, it can suspend
the execution of the sentence of imprisonment and release the offender on the execution by him of a
bond. But it is not mandatory for the Court to do so. [Kantilal, (1954) 33 Pat 674]

Subsequent sentence shall commence after expiration of previous sentence

Ans. Section 427, Cr.P.C.
(1) When a person is already undergoing a sentence of imprisonment and he is again sentenced for
imprisonment. The subsequent sentence shall start running after the expiration of the first sentence
of imprisonment. But the Court can direct that the subsequent sentence shall run concurrently with
such previous sentence.
Provided that if a person who is imprisoned under Section 122 in default of furnishing security is, whilst
undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making
of such an order, the latter sentence is to commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent
conviction to imprisonment for term or imprisonment for life, the subsequent sentence shall run
concurrently with such previous sentence.
Neither Trial Court nor the Appellate Court is competent to exercise the discretion under this Section
after the judgement has been signed. [Mulaim Singh versus State, 1974 Cr LJ (All FB)]
When an earlier sentence has already been undergone, direction to run subsequent sentences
concurrently with the earlier sentence cannot be issued. [Amar Nath Umakant versus State of AP, 1999
Cr LJ 3801 (AP DB)]
Where accused has been convicted and sentenced to different sentences in three different cases
on plea of guilty, on petition under Section 482, Cr.P.C., direction was passed that sentence shall run
concurrently. [Paramjeet Singh versus State of Rajasthan, 2007 Cr LJ 591 (Raj)]

Period of undergone sentence by the accused to be set-off against the sentence of imprisonment
Section 428, Cr.P.C.
Where an accused person has, on conviction, been sentenced to imprisonment for a term [not being
imprisonment in default of payment of fine], the period of detention undergone by the accused during

96 Code of Criminal Procedure, 1973

investigation, inquiry or trial shall be set off against the term of imprisonment awarded by the Court.
The liability of the accused shall be restricted to the remainder.
Provided that in cases referred to in Section 433A, such period of detention shall be set off against the
period of fourteen years referred to in that Section.

Money payable by virtue of any order made can be recovered

Section 431, Cr.P.C.
Any money (other than a fine) payable by virtue of any order made under this Code, and the method
of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.
Compensation awarded under Section 357(3) Cr.P.C. can be recovered as arrears of land revenue under
Section 421 and 431, Cr.P.C. and not by an order sentence of imprisonment in default of payment of
compensation. [Rajendran versus Jose, 2002 Crimes 653: 2002 Cr LJ 3911 (3912) (Ker)].

Power of the Government to suspend or remit sentences

Section 432, Cr.P.C.
When any person has been sentenced to punishment for an offence, the appropriate Government may,
at any time, suspend the execution of sentence or remit the whole or any part of the punishment to
which he has been sentenced. The Government may suspend or remit the sentence without conditions
or upon any condition which the person sentenced accepts.
(2) Where an application is made to the appropriate Government for the suspension or remission of a
sentence, the Government may require the Presiding Officer of the Court before or by which conviction
was had or confirmed, to state his opinion, whether application should be granted or refused.
(3) If the condition has not been fulfilled by the person to whom suspension or remission has been
given, the Government may cancel the suspension or remission and in that case that person would be
arrested by Police without warrant and remanded to undergo an unexpired portion of the sentence.
(4) The appropriate Government may give directions as to how petitions should be presented and dealt
with.
Petitions can be presented by the person who is in jail.
(5) The petition for suspension and remission of sentence can also be made regarding any order passed
by a Criminal Court. E.g., orders under Section 356 of Cr.P.C.

Provisions As To Bail And Bonds

In bailable offence, the grant of bail is a matter of course
Section 436, Cr.P.C.
Any person who is accused of an offence of bailable offence is arrested without warrant by an officer-
in-charge of a police station. The Officer-in-charge of a police station shall release him on bail. If he
appears or is brought before Court, he shall be released on bail by Court. Thus bail may be given either
by the Officer-in-charge of the police station or by the Court.
Provided that if the arrested person is indigent and is unable to furnish security, Court or Police Officer
shall discharge him on his executing a bond without any surety.
Explanation.—If an arrested person is unable to give bail within a week of the date of his arrest, it shall
be sufficient ground for police and Court to presume that he is an indigent.
Provided that the provisions of this Section would not affect the provisions of sub-section (3) of
Section 116 or Section 446A of Cr.P.C.

Code of Criminal Procedure, 1973 97

 (2) If the accused fails to comply with the conditions of the bond, he remains absent and does not
appear before the Court. He is again arrested and brought before Court or he himself makes an
appearance, the Court may refuse to release him on bail.
Maximum period for which an undertrial prisoner can be detained

Section 436A, Cr.P.C.

It provides that where an under-trial prisoner (other than the one accused of an offence for which
death has been prescribed as one of punishments) has been under detention for a period extending
to one-half of the maximum period of imprisonment provided for the alleged offence, he shall be
released on his personal bond, with or without sureties.
Proviso I - the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in
writing, order the continued detention of such person for a longer period than one-half of the said
period or release him on bail instead of the personal bond with or without sureties.
Proviso II - 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 law.
Explanation.—The period of detention passed due to delay in proceeding caused by the accused shall
be excluded.
Bail may be taken by Magistrate in case of non-bailable offence

Section 437, Cr.P.C.

(1) When a person is accused of or suspected of the commission of any non-bailable offence and is
arrested by police without warrant or appears or is brought before Court, he may be released on bail.
But such person shall not be released on bail—
(i) if there is reason to believe that he is guilty of an offence punishable with death or imprisonment
for life.
(ii) If he is guilty of cognizable offence and previously has been convicted for an offence punishable
with death or imprisonment for life or imprisonment for seven years or more or he had been
previously convicted on two or more occasions of a non-bailable and cognizable offence.
Proviso I - The Court may direct that if the person is guilty of an offence as referred in clause (i) and
clause (ii), be released on bail, if such person is under the age of sixteen years or is a woman or is sick
or infirm.
Proviso II - The Court may direct that a person who is guilty of an offence as mentioned in clause II, be
released on bail, if the Court is satisfied that it is just and proper to do so for any other special reason.
Proviso III - The mere fact that the accused may be required for a test identification parade is no
ground for refusing to grant bail.
Proviso IV - 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 Court shall grant bail only after
giving an opportunity of hearing to the prosecution.
(2) If it appears to the Court at any stage of inquiry, investigation or trial that there is reasonable ground
for believing that the accused has committed an offence and further inquiry is being required, he shall
be released on bail.
(3) When a person is accused or suspected to the commission of an offence punishable with
imprisonment for a term of seven years or more or an offence under Chapter sixth (offences against

98 Code of Criminal Procedure, 1973

State), Chapter sixteen (offences against human body), Chapter seventeen (offences against property)
of Indian Penal Code or abetment of or conspiracy or attempt to commit any such offence, is released
on bail, the Court may impose any conditions which the Court considers necessary—e.g.,
(a) That such person shall attend Court in accordance with the conditions of the bond.
(b) That such person shall not commit a similar offence.
(c) That accused shall not make any inducement, threat or promise to any witness so as to dissuade
him from disclosing facts to the Court or to the police Officer. He shall not tamper with evidence.
(d) Court may also impose any condition in the interest of justice.
(4) An Officer or a Court releasing a person on bail under sub-section (1) or sub-section (2), shall record
its reasons in writing.
(5) Cancellation of Bail:—
Any Court which has released a person on bail under sub-section (1) or under sub-section (2) of Section
437, Cr.P.C., may, if it considers it necessary, direct that such person be arrested and commit him to
custody. (If the accused fails to comply with the conditions imposed upon him under sub-section (3)
of Section 437, Cr.P.C., his bail may be cancelled).
(6) If a person accused of a non-bailable offence and his trial for offence is not concluded within sixty
days from the first date fixed for taking evidence, such person shall be released on bail.
(7) If at the conclusion of the trial before judgement is pronounced, the Court is of opinion that there
is reasonable ground for believing that the accused has not committed an offence, the accused shall
be released on bail.

Anticipatory bail
An anticipatory bail is a pre-arrest bail.
Section 438, Cr.P.C. provides as under:—
(1) Where any person has reason to believe that he may be arrested on accusation of having committed
a non-bail offence. He may apply to the High Court of Session Court that in event of such arrest, he
shall be released on bail. The High Court of Session Court may reject the application or may make
an interim order for grant of anticipatory bail. The High Court of Session Court would consider the
following factor before making an order on anticipatory bail application.
(i) The nature and gravity of the accusation.
(ii) The antecedents of the applicant i.e., whether he has been previously convicted for any
cognizable offence.
(iii) The possibility of the applicant fleeing from justice.
(iv) Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him.
Proviso (1): If the High Court or Session has rejected the application and has not passed any
interim order for the grant of anticipatory bail, it is open to the police officer to arrest him without
warrant.
(1A) Where the Court grants an interim order, notice shall be served along with a copy of this order, to
the Public Prosecutor and the superintendent of Police, with a view to give them an opportunity of
being heard before passing a final order.

Code of Criminal Procedure, 1973 99

 (1B) The presence of the applicant at the time of final hearing of anticipatory bail, is obligatory, if the
Court considers such presence necessary in the interest of justice.
(2) When High Court of Session Court make a direction under sub-section (1) of Section 438, Cr.P.C.,
it may include such conditions as it may think fit, including:
(i) A condition that the person shall make himself available for interrogation by a Police officer as
and when required.
(ii) that the person shall not make any inducement, threat or promise to any witness so as to
dissuade him from disclosing such facts to the Court or to any Police officer.
(iii) that the person shall not leave India without the previous permission of the Court.
(iv) any other condition as may be imposed under sub-section (3) of Section 437, Cr.P.C.
(3) If any person thereafter arrested without warrant by an officer-in-charge of a Police Station and
is prepared at the time of arrest or at any time while in custody, he shall be released on bail. If a
magistrate takes cognizance of offence and decides that a warrant should be issued in the first
instance, he shall issue a bailable warrant in conformity with the direction of the Court under sub-
section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of
having committed an offence under sub-section (3) of Section 376, Section 376AB, Section 376DA,
Section 376DB of the IPC.
Anticipatory bail granted by High Court can only be cancelled by it and not by Magistrate or Session
Court [Bholai Mistry versus State, 1977 Cr LJ 492 (Cal DB)].

Special powers of High Court or Court of Session regarding Bail

Section 439, Cr.P.C.
(1) The High Court of Session Court may direct that any person accused of an offence and in custody
be released on bail.
Provided that if offence is triable exclusively by the Session Court or if punishable with imprisonment
of life, High Court or Session give notice to the Public Prosecutor unless for reasons to be recorded
in writing it is of opinion that it is not practicable to give such notice.
Provided further that the High Court of the Court of Session shall, before granting bail to a person
who is accused of an offence triable under sub-section (3) of the Section 376 or Section 376AB
or Section 376DA, or Section 376DB of the IPC, give notice of the application for bail to the Public
Prosecutor within a period of fifteen days from the date of the receipt of the notice of such
application.
(1A) If the Offence is of the nature specified in sub-section (3) of Section 437, may impose any conditions
as it considers necessary as mentioned in that sub-section [Section 437(3), Cr.P.C.]
(2) A High Court of Session Court may direct that any person who has been released on bail under this
Chapter be arrested and commit him to custody.

Bond and Surety

Section 440, Cr.P.C.
(1) The amount of bond shall be fixed with due regard to the circumstances of the case and shall not
be excessive.

100 Code of Criminal Procedure, 1973

(2) The High Court or Court of Session may direct that the bail required by a Police officer or Magistrate
be reduced.
Section 441, Cr.P.C. contemplates furnishing of a personal bond by the accused person and a bond by
one or more sufficient sureties.
Section 441A, Cr.P.C. - This Section provides that every person standing surety for the accused persons
shall make a declaration as to the number of persons to whom he has stood surety including the
accused, giving therein all the relevant particulars.
Section 442, Cr.P.C. - As soon as bond is executed, the Court shall release him, if is in jail, the Court
shall issue an order to the officer-in-charge of jail.
Section 443, Cr.P.C. - If through mistake, fraud or otherwise, insufficient sureties have been accepted,
the Court may issue a warrant of arrest and may order him to find sufficient sureties, and his failing,
commit him to Jail.
Section 444, Cr.P.C. - When a surety applies for the cancellation of his bond, the Magistrate shall issue
a warrant of arrest and on his appearance, the bond of surety shall be discharged and the accused be
directed to find other sufficient sureties.
Section 445, Cr.P.C. - This Section permits payment of cash or Government promissory notes in
substitution of passing a bond, except where the bond is for good behaviour. This Section enables the
accused to deposit cash under the circumstances where sureties may not be available.
Procedure when bond has been forfeited

Section 446, Cr.P.C.

This Section refers to two classes of bonds—
(i) A bond under the Code for the appearance or for production of property.
(ii) Any other bond under the Code.
Where the Court by which bond was taken or of any Court to which case has subsequently person
bound by it either to pay penalty or to show cause.
If sufficient cause is not shown and penalty not paid, the Court will recover the same as if it were a
fine imposed by a Court under this Code as laid down in Section 421, Cr.P.C.
The Court has the discretion to remit a portion of the penalty.
If a surety dies before the bond is forfeited, his estate is discharged.
Where a person is convicted of a breach of the bond taken under Section 106, 117, 360 or 448, a
certified copy of the judgement will be used as evidence in proceedings against the surety and shall be
presumptive proof of his liability unless he proves the contrary.

Section 446A – Cancellation of bond

If a bond has been forfeited, personal bond and surety bond shall stand cancelled such person shall
not be released on his own bond. But he may be released on execution of fresh personal bond and
surety bond.

DISPOSAL OF PROPERTY
Provisions regarding disposal of property
Section 451, Cr.P.C.

Code of Criminal Procedure, 1973 101

 When any property is produced before any Criminal Court during any inquiry or trial, the Court may
make such order for its custody as it thinks fit (till pendency of inquiry or trial).
If the property is subject to speedy and natural decay, or if it is otherwise expedient to do so, the Court
may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Section 452 Order of Disposal of Property at conclusion of trial

On the conclusion of the inquiry or trial, the Criminal Court may make order as it thinks fit for the
disposal, by destruction, confiscation or delivery to any person entitled to its possession.
Court may release property without condition or on condition that he would execute a bond with or
without surety. The Court may also impose a condition that property would be restored to the Court,
if order is modified or set aside on appeal or revision.
A Court of Session may, instead of itself making an order, direct the property to be delivered to Chief
Judicial Magistrate, who shall thereupon deal with it in the manner provided in Section 457, 458 and
459, Cr.P.C.
An order made under sub-section shall not be carried out for two months, or when an appeal is
presented, until such appeal has been disposed of.

Section 456, Cr.P.C.

Section 452 and 455, Cr.P.C. deals with movable property. Section 456, Cr.P.C. deals with immovable
property.
Where a person is deprived of his possession of immovable property by
(a) Criminal force
(b) Show of force
(c) Criminal intimidation
He may be reinstated in possession by the Court. There are two conditions precedent for making an
order under this Section:—
(a) The dispossessed must be convicted.
(b) The dispossession should be under the circumstances mentioned in this Section.
Where the Court trying the offence has not made an order, the Appellate or Revisional Court, while
disposing of appeal or revision may make such order.
No such order shall be made by the Court after one month of the date of conviction.
Order made under this Section shall not prejudice any right or interest in immovable property which
any person may be able to establish in a Civil Suit.
Procedure is to be adopted by Police upon seizure of property

Section 457, Cr.P.C.

Where seizure of property (under Section 102, Cr.P.C.) is reported by the Police officer to Magistrate, the
Magistrate may make an order as it thinks fit for disposal of property. The Magistrate can make an order
under this Section in case property is not produced before it during an inquiry or trial, the Magistrate
can also deliver property to its rightful claimant. Magistrate may impose such conditions as it thinks
fit. If there is no claimant for the seized property, Magistrate may issue proclamation and require any
person who may have a claim thereto, to appear before Court and establish his claim within six months
from the date of such proclamation.

102 Code of Criminal Procedure, 1973

Section 458, Cr.P.C.
Procedure where no claimant appears within six months?
If no person establishes his claim to such property within six month, and the person who is in possession
of such property unable to show that it was legally acquired by him, the Magistrate may by order direct
that such property shall be at the disposal of the State Government and may be sold by the State
Government and the proceeds of the sale shall be dealt with in such manner as may be prescribed.
An appeal shall lie against any such order.

Irregular Proceedings
Irregularities which do not vitiate proceedings
Section 460 - This Section cures nine kinds of irregularities, provided that they are caused erroneously
and in good faith.
(a) To issue a search warrant under Section 94.
(b) To order, under Section 155, the Police to investigate an offence.
(c) To hold an inquest under Section 176.
(d) To issue process under Section 187, for the apprehension of a person within his local jurisdiction
who has committed an offence outside the limits of such jurisdiction.
(e) To take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;
(f) To make over a case under sub-section (2) of Section 192.
(g) To tender a pardon under Section 306.
(h) To recall a case and try it himself under Section 410.
(i) To sell property under Section 458 or Section 459.

Irregularities which vitiate proceedings

Section 461 - This Section enumerates seventeen kinds of irregularities which render proceedings
void. No question of error or good faith arises here. Other words, they are illegalities which vitiate the
proceedings. Irregularities are as under:—
(a) Attaches and sells property under Section 83
(b) Issues a search warrant for a document, parcel or other thing in the custody of a postal or telegraph
authority.
(c) Demands security to keep the peace.
(d) Demands security for good behaviour.
(e) Discharges a person lawfully bound to be of good behaviour.
(f) Conceals a bond to keep the peace.
(g) Makes an order for maintenance.
(h) Makes an order under Section 133 as to a local nuisance.
(i) Prohibits under Section 143, the repetition or continuance of a public nuisance.
(j) Makes an order under Part C and Part D of Chapter X.
(k) Takes cognizance of an offence under clause (c) of sub-section (1) of Section 190.
(l) Tries an offender.

Code of Criminal Procedure, 1973 103

 (m) Tries an offender summarily.
(n) Passes a sentence under Section 325, and proceedings recorded by another Magistrate.
(o) Decides an appeal.
(p) Calls, under Section 397, for proceedings,
(q) Revises an order passed under Section 446. All proceedings shall be void.

Proceedings in wrong place

That proceedings were taken in the wrong place would not vitiate the trial, unless it appears that this
has occasioned a failure of justice.

Effect of omission to frame, or absence of, or error in, charge

Section 464 - Omission to frame a charge under Section 246(1) or any error, omission or irregularity
in the charge including any misjoinder of charges will be a ground for a retrial, if it has occasioned a
failure of justice.
Finding or sentence reversible by reason of error, omission or irregularity, by a Court of appeal or
revision
Section 465 - A Court of appeal or revision will not set aside a conviction merely on the ground of any
error or irregularity in Section for the prosecution so long as there has been no failure of justice.
This Section applies to a case where something irregular takes place at a regular trial. It does not apply
where the trial is illegal from start to finish.
In determining whether any error, omission or irregularity in any sanction for the prosecution has
occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and
should have been raised at an earlier stage in the proceedings.

LIMITATION FOR TAKING COGNIZANCE OF CERTAIN OFFENCES

Cognizance after lapse of period of limitation
Section 468, Cr.P.C.
(1) No Court shall take cognizance of an offence after the expiry of the period of limitation.
(2) The period of limitation shall be
(a) Six months, if the offence is punishable with fine only.
(b) One year, if the offence is punishable with imprisonment for a term not exceeding one year.
(c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but
not exceeding three years.
(3) The period of limitation, in relation to offences which may be tried together, shall be determined
with reference to the offence which is punishable with the more severe punishment or, as the case
may be, the most severe punishment.

Commencement of period of limitation

Ans. Section 469:—
The period of limitation, in relation to an offender shall commence—
(a) On the date of the offence.
(b) If the aggrieved party or the police officer was not aware of the commission of the offence, the
earliest day on which either of them becomes aware of such offence, will be dated for the purpose
of commencement of limitation.

104 Code of Criminal Procedure, 1973

(c) If the identity of the offender was not known, then also the first day on which either the aggrieved
person or the Police officer comes to know of his identity will be the date of commencement of
limitation.
(2) For computation purposes the first day will be excluded.

Time is excluded in certain cases

Section 470 appears to have been enacted on the analogy of Section 14 and Section 15 of the Indian
Limitation Act.
Section 470(1) - The time during which any person has been prosecuting with due diligence another
prosecution, whether in a Court of first instance or in a Court of Appeal or revision, against the
offender, shall be excluded.
Provided that no such exclusion shall be made when the prosecution relates to the same facts and is
prosecuted in good faith in a Court which form defect of jurisdiction or other cause of a like nature, is
unable to entertain it
(3) This sub-section allows exclusion of time during which an injunction or order of stay subsists in
respect of the institution of prosecution.
(4) Where notice of prosecution for an offence is given or (2) where the previous consent or sanction of
the Government or any other authority is required to be taken, the period of notice or the time required
for obtaining such consent or sanction, as the case may be, should be excluded.
Exclusion of date on which Court is closed:—Section 471 where the period of limitation expires on a
day when the Court is closed, the Court may take cognizance on the day on which the Court reopens.
Explanation:—A Court shall be deemed to be closed on any day within the meaning of this section, if,
during its normal working hours, it remains closed on that day.
Continuing Offence:—Section 472 in the case of a continuing offence, a fresh period of limitation shall
begin to run at every moment of the time during which the offence continues.
Extension of period of limitation is certain cases:—Section 473 any Court may take cognizance of an
offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances
of the case that the delay has been properly explained or that it is necessary so to do in the interests
of justice.

MISCELLANEOUS
Inherent power of the High Court?
Section 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.
It has been held by the Supreme Court (Amarpal Singh versus State of UP, (2012) 6 SCC 491) that a
judge functioning at any level has dignity in the eyes of public and the credibility of the entire system is
dependent on the use of dignified language and sustained restraint, moderation and sobriety. Therefore,
unwarranted comments on the Judicial Officer create a dent in the said credibility and consequently
lead to the same kind of erosion and affect the conception of rule of law. Thus where the High Court
passed some remarks against a subordinate Magistrate and directed the administrative Judge to take

Code of Criminal Procedure, 1973 105

 appropriate action against the Magistrate, the observations made and the directions given were held
by the Supreme Court as liable to be expunged.
The High Court possesses inherent power to expunge remarks from judgement whether passed by
itself or by the subordinate Courts. [Municipality, Jammu versus Puran Prakash, 1975 Cr LJ 692 (J&K)]
Section 482, Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to
prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be
exercised to quash the Criminal proceedings pending in any Court but the power cannot be exercised
to interfere with the statutory power of the Police to conduct investigation in a cognizable offence
[State of Karnataka versus Pastor P Raju, 2006 Cr LJ 4045 (SC): AIR 2006 SC 2825].
Section 482 gives power to the High Court to entertain applications which are not contemplated by this
Code. Therefore, if the High Court feels that ends of justice require that an order should be made in an
application, although the application is not contemplated by the Code. The High Court will entertain
the application and make the necessary orders to secure the ends of justice (Mary Angel versus State
of Tamil Nadu, AIR 1999 SC 2245).
Arnab Manoranjan Goswami versus State of Maharashtra, Supreme Court of India, Dhananjaya Y.
Chandrachud, Indira Banerjee, JJ, Criminal Appeal No. 742 to 744 of 2020 (Arising Out of SLP (Crl) No.
5598-5600 of 2020) Decided on: 27-11-2020 the Supreme Court has held in the above-mentioned case
that:
(1) Doors of Apex Court cannot be closed to a citizen who is able to establish prima facie that
instrumentality of State is being weaponized for using force of criminal law.
(2) Courts must be alive to safeguard public interest in ensuring that due enforcement of criminal law
is not obstructed. Fair investigation of crime is an aid to it.
(3) The High Court has jurisdiction to quash the investigation and may pass appropriate interim orders
in accordance with law.

Landmark Judgements

Custodial Interrogation – Right to Silence of Accused

Nandini Satpathy versus PL Dani
[AIR 1978 SC 1025: 1978 (2) SCC 424: 1978 Cri LJ 968: 1978 (3) SCR 608]
Decided on: 07 April 1978
Bench: VR Krishna Iyer, Jaswant Singh and VD Tulzapurkar, JJ.
Facts: DSP vigilance, filed complaint against appellant, former CM of Orissa, before SDJM, Cuttack
alleging some offending facts. Cognizance of offence taken by magistrate and summons for appearance
issued against accused appellant. Aggrieved against action of the magistrate , the appellant moved HC.
Under Article 226 of Constitution challenging validity of magisterial proceedings, HC rebuffed pleas of
unconstitutionality and illegality.
Issue: Whether an accused has the right to consult his lawyer in custodial interrogation or not and the
accused has the right to silence in police interrogation?
Held: Self-incrimination or tendency to expose one-self to criminal charge is more than ‘confessional’
and less than “relevant”. Accused person cannot be forced to answer questions merely because answers
there are not implicative when viewed in isolation and confined to that particular case. If the answer
sought has reasonable prospect of exposing him to guilt in some other accusations, actual or imminent,
he is entitled to keep his mouth shut, even though investigation underway is not with reference to that.

106 Code of Criminal Procedure, 1973

But the accused person cannot have a hiding ground for fanciful claims, unreasonable apprehensions
and vague possibilities. He is bound to answer where there is no clear tendency to criminate.
—————

Rape – Sex with Minor Wife

Independent Thought versus Union of India
[AIR 2017 SC 4904: 2017 (12) SCALE 621: 2017 (10) SCC 800: 2018 Cri LJ 3541]
Decided on: 11 October 2017
Bench: Madan B Lokur and Deepak Gupta, JJ.
Facts: Petitioner-society filed a petition under Article 32 of Constitution in public interest to draw
attention to violation of rights of girls married between ages 15 and 18 yrs. Petitioner-society involved
in legal intervention, research and training on issues concerning children and their rights. Almost
every statute in India recognizes that a girl below 18 yrs. of age is a child and law penalises sexual
intercourse with a girl below 18 yrs. of age. By virtue of exception 2 to Section 375 of Indian Penal
Code, unfortunately if a girl child between 15 and 18 yrs. of age is married, her husband can have non-
consensual intercourse with her without being penalised under Indian Penal Code, only because she is
married to him and for no other reason.
Issue: Whether sexual intercourse between wife being a girl between 15 and 18 years of age and man
is rape?
Held: Madan B Lokur, J: Except to harmonize system of laws relating to children, no other option
left and require exception 2 to Section 375 of Indian Penal Code to meaningfully read as “Sexual
intercourse/acts by a man with his own wife, wife not being under 18 years of age, is not rape.” Only
through this reading intent of social justice to married girl children and constitutional vision of framers
of the Constitution can be preserved and protected and given impetus.
Deepak Gupta, J (Concurred View): Exception 2 in so far as it relates to girls below 18 years is
discriminatory and violative of Article 14 of Constitution. This is invidious discrimination which is writ
large when on one hand State by legislation laid down that abetting child marriage is criminal offence,
it cannot, on other hand defend this classification of girls below 18 years on the ground of sanctity of
marriage because such classification has no nexus with the object sought to be achieved.
—————

Removal of Disqualification on MPs and MLAs under

Section 8, Representation of People Act, 1951, on Stay of Conviction
Lok Prahari, through its General Secretary SN Shukla versus Election Commission of India
[AIR 2018 SC 4675: 2018 (14) SCALE 107: 2019 (193) AIC 225: 2018 (18) SCC 114]
Decided on: 26 September 2018
Bench: Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ.
Facts: Petitioner-society instituted Public Interest Litigation before Allahabad H.C. seeking declaration
that MLA stood disqualified notwithstanding stay granted by Sessions Judge. H.C. dismissed PIL on
ground that since conviction stayed by appellate court, disqualification otherwise stood attracted
would not operate from the date on which conviction stayed. Petitioner contends that Appellate court
does not have power to stay conviction under Section 389 of the Code of Criminal Procedure and can
stay only execution of sentence.

Code of Criminal Procedure, 1973 107

 Issue: Whether disqualification under Section 8(1)(2)(3) of Representation of People’s Act, 1951, will not
operate on stay of conviction of MP or MLA by appellate Court?
Held: Once during pendency of appeal conviction has been stayed, disqualification which operates
as a consequence of conviction cannot remain in effect. Power conferred on appellate court under
Section 389 of the Code of Criminal Procedure, in appropriate case, to stay conviction. It is untenable
that disqualification which ensues from conviction will operate despite a stay of conviction granted by
Appellate Court. Stay of conviction will relieve the individual from suffering the consequence inter alia
of disqualification relatable to provisions of Sections 8(1)(2) and (3).
—————

Adultery under Section 497 IPC – Criminalization

Joseph Shine versus Union of India
[(2019) 3 SCC 39: 2018 (11) SCALE 556: AIR 2018 SC 4898: 2019 Cri LJ 1]
Decided on: 27 September 2017
Bench: Dipak Misra, CJI, AM Khanwilkar, RF Nariman,
Dr. Dhananjaya Y Chandrachud and Indu Malhotra, JJ.
Facts: Validity of Section 497 I.P.C. challenged in petition under Article 32 of Constitution of India.
Issue: Whether subject to criminal sanctions, “adultery” must be treated as penal offence, or marital
wrong which is valid ground for divorce? Whether Section 497 I.P.C. is constitutionally valid, which
makes adultery a crime?
Held: Section 497 I.P.C. is struck down as unconstitutional being violative of Articles 14, 15 and 21 of
Constitution. Section 198(2) Cr.P.C. which contains procedure for prosecution under Chapter XX of I.P.C.
shall be unconstitutional to the extent that it is applicable to the offence of Adultery under Section
497 I.P.C.
Dipak Misra, CJI (For himself and AM Khanwilkar, J): Law expects parties to remain loyal in case of
adultery and maintain fidelity throughout and also makes adulterer the culprit. This expectation by
law is a command which gets into the core of privacy. Two individuals may part on said ground but
it is inappropriate to attach criminality. When parties to marriage lose their moral commitment to a
relationship, it creates a dent in marriage and it depends on parties how they deal with the situation.
Some may seek divorce and some may exonerate and live together. Whether deterrent or reformative,
theories of punishment, would not save the situation. In certain situations, adultery may not be the
cause of unhappy marriage. As Section 497 I.P.C. is held unconstitutional and adultery should not be
treated as an offence, it is appropriate to declare Section 198 Cr.P.C. unconstitutional, which deals with
procedure for filing a complaint in relation to the offence of adultery.
RF Nariman, Dr. Dhananjaya, Indu Malhotra, JJ – Concurred
—————

Death Sentence – Petition against not to be Dismissed without Reasons

Baba Saheb Maruti Kamble versus State of Maharashtra
[2018 (15) SCALE 228: 2018 (4) Crimes 494: 2018 (3) PCCR 437: 2019 (195) AIC 233]
Decided on: 01 November 2018
Bench: AK Sikri, Ashok Bhushan and Indira Banerjee, JJ.
Facts: Petitioner filed review petition against death penalty for commission of offences under Sections
302, 376(2)(f) and 342 I.P.C. HC heard together appeal and reference. Conviction upheld by HC and

108 Code of Criminal Procedure, 1973

also death sentence of petitioner. Review petitioner filed an SLP against that judgement, which was
dismissed.
Issue: Whether against award of death sentence SLP could be dismissed in limine?
Held: At least qua death sentence, SLP filed in that case against order of lower courts, should not be
dismissed without giving reasons. There may be cases at SLP stage itself, court may find there is no
scope for interference at all in conviction for offence under Section 302 I.P.C. conviction is recorded on
the basis of evidence which is impeccable, trustworthy and credible and proves guilt of the accused
beyond any shadow of doubt. At the same time if the death penalty is to be affirmed while dismissing
SLP, it should be by reasoned order on aspect of sentence. Impugned order dismissing SLP in limine
with one word and without giving reasons, recalled.
—————

Special Power of Governor/President vis-a-vis General Power of SC – No Conflict

KM Nanavati versus State of Bombay
[AIR 1961 SC 112: 1961 (1) SCR 497: 1961 (1) Cri LJ 173: 1961 (1) SCA 54]
Decided on: 05 September 1960
Bench: BP Sinha, CJ and JL Kapur, K Subba Rao, KN Wanchoo and PB Gajendragadkar, JJ.
Facts: Petitioner was charged under Section 302 I.P.C. and produced before Additional Chief Presidency
Magistrate, Bombay and taken into police custody. The Magistrate received a letter from the Flag Officer,
Bombay to effect that he was ready to take the accused, II in command in INS Mysore, in naval custody
as defined in Section 3(12) of Navy Act, 1957. He would continue to be detained under orders of Naval
Provost Marshal in exercise of his authority under Sections 8(2) and (3) of Navy Act, 1957. Petitioner
continued to remain in Naval Custody and in due course placed for trial before Sessions Judge, Greater
Bombay Jury by majority of 8 to 1 held him not guilty. The Sessions Judge made reference to HC under
Section 307, Cr.P.C., disagreeing with the verdict of the jury. HC accepted reference and convicted
petitioner under Section 302 I.P.C. and sentenced him to LI. Application for leave to appeal to SC made
soon after judgement pronounced by HC. Matter of unexecuted warrant placed before D.B., which
directed that in view of unusual and unprecedented situation arising out of order of Governor matter
should be referred to a larger bench.
Issue: What is the scope of power under Article 161 of Constitution conferred upon the Governor?
Held: Subba Rao, J. In the interest of justice SC can pass any suitable order. Under Article 141 power
of SC is generally exercisable in all cases but Governor’s power is special power. If there is conflict
between special and general power, special power should prevail although there is no conflict. There
are two ways of reconciling powers of the Governor under Article 161 and those of SC. Under Articles
142, 144 and 145. One was that SC had no power when Executive exercised its powers and other was
to say that so far as pardon and remission was concerned, while both had powers, Executive had
exclusive power, but as far as suspension was concerned, Executive could not make order impugning
upon SC is power, when proceedings pending in SC.
—————

Code of Criminal Procedure, 1973 109

 Surveillance – Violation of Privacy by Police
Kharak Singh versus State of Uttar Pradesh
[AIR 1963 SC 1295: 1964 (1) SCR 332: 1964 (2) SCJ 107: 1963 (2) Cri LJ 329]
Decided on: 18 December 1962
Bench: BP Sinha, CJ and JC Shah, JR Mudholkar, K Subba Rao,
N Rajgopala Ayyanagar and SJ Imam, JJ.
Facts: Petitioner was arrested in dacoity case but released under Section 169 Cr.P.C. as there was no
evidence against him. History sheet in regard to him opened by police. For such surveillance, chowkidar
of village and police constables used to enter his house, shut at his door, wake him up during night
and disturb his sleep. On a number of occasions, they compelled him to get up from his sleep and
accompany them to the police station to report his presence. He must report to the chowkidar of the
village or at the police station of his departure and give them information about his destination and
the period within which he would return. Immediately the police station of his destination is contacted
by the police station of his departure and puts him under surveillance in the same way as the letter.
Challenging constitutional validity of Chapter 20 of U.P. Police regulations and powers conferred upon
police officials by its several provisions on the grounds that they violate rights guaranteed to citizens
under Articles 19(1)(d) and 21 of the Constitution.
Issue: Whether Chapter XX of U.P. Police regulations and powers conferred upon police officials by its
provisions are constitutionally valid, as they violate rights guaranteed to citizens by Articles 19(1)(d) and
21 of Constitution?
Held: Freedom guaranteed by Article 19(1)(d) is not infringed by watches being kept over movements of
suspects. Regulation 236(b) which authorises ‘domiciliary visits’ was struck down as unconstitutional.
Petitioner Entitled to issue of writ of mandamus directing respondent not to continue domiciliary
visits. Clause (b) of Regulation 236 is violative of Article 21 and as there is no law to justify it must be
struck down as unconstitutional. By watch being kept over movements of suspect freedom guaranteed
by Article 19(1)(d) is not infringed. Right of privacy is not guaranteed under the Constitution. Attempts
to ascertain movements of individuals, which is merely a manner in which privacy is invaded, is not
infringement of FR guaranteed by Part III.
—————

Undertrial Prisoners at Tihar Jail and Solitary Confinement

Sunil Batra versus Delhi Administration
[AIR 1978 SC 1675: 1979 SCR (1) 392: 1978 Cri LJ 1741: 1978 (4) SCC 494]
Bench: YV Chandrachud, CJ and VR Krishna Iyer, S Murtaza Fazal Ali,
PN Singhal and DA Desai, JJ.
Facts: Two petitioners, one Indian and other French, before SC, one under death sentence and other
facing grave charges, challenged traumatic treatment to which they are subjected to by Jail authorities
as illegal by separate WPs. Grievance of petitioner, sentenced to death by Delhi Sessions Court is against
de facto solitary confinement at Tihar Jail, pending his appeal, without de jure sanction. Complaint of
other petitioner was against distressing disablement of men behind bars especially of under-trials by
bar fetters and for unlimited duration on ipse dixit of prison officials. Does a prison setting ipso facto
outlaw, rule of law, lock out the judicial process from Jail gates and declare long holiday for human
rights of convicts in confinement and (to change the metaphor) if there is no total eclipse, what lucent
segment is open for judicial justice, is the important interrogation that lied at the root of these WPs.

110 Code of Criminal Procedure, 1973

Issue: Constitutional validity of Section 3 of Prisons Act, 1894 insofar as it empowers Jail authorities
to keep in solitary confinement person sentenced to death and Section 56 of Prisons Act insofar as it
confers unguided, uncanalised and arbitrary powers on Superintendent of Police to confine a prisoner
in irons. And whether Prison system has a conscience in constitutional terms, whether prisoner ipso
facto forfeits personhood to become a rightless slave of State and in cultural terms, whether man-
management of prison society can operate the arts by “zoological “strategies?
Held: Sections 30 and 56 of Prisons Act, 1894 are constitutionally valid. Though Section 30 is intra vires,
petitioner under death sentence or others like him cannot be classed as persons “under sentence of
death. They cannot be confined apart from other prisoners. Operation of Articles 14, 19 and 21 may be
paired down for prisoners but not puffed out altogether. Fetters of petitioner facing grave charges shall
be removed forthwith and freedom of undertrials inside jail be allowed to him, including locomotion
– not if he has already been convicted. Section 56 of Prisons Act although pre-constitution measures
its application must be governed by the imperative of Articles 14, 19 and 21. There must be special
reasons for an extraordinary or urgent character when fetters are fastened on an unconvicted prisoner.
Substantial reasons must be recorded and its copy furnished to the prisoner.
—————

Role of Judges – Discipline of Law, Due Process of Law and Rule of Law
Fuzlunbi versus K Khader Vali
[AIR 1980 SC 1730: 1980 (4) SCC 125: 1980 Cri LJ 1249: 1980 (3) SCR 1127]
Decided on: 08 May 1980
Bench: VR Krishna Iyer, O Chinnappa Reddy and AP Sen, JJ.
Facts: Appellant married respondent and blessed with a son. Respondent tormented appellant,
tormented woman, talked out of conjugal home, sought shelter in her parents’ home. Appellant filed
an application for maintenance for herself and her son under Section 125 Cr.P.C. Magistrate granted a
monthly sum of Rs. 250 to the wife and Rs. 150 to the child. Respondent resorted to unilateral technique
of talaq and tendered magnificent sum of Rs 500 by way of mehar and Rs. 750 towards maintenance
for period of iddat, entrancing himself from obligation to maintain appellant. Talaq has snapped marital
ties, flimsy mehar tendered together with 3 months iddat dues and the divorcee remains neglected.
No one in his senses can contend that a mehar of Rs. 500 will yield sufficient income to maintain a
woman even if she were to live on city pavements. What is the intent of Section 127(3)(b) Cr.P.C. What
is the purpose of providing absolution from obligation to pay continued maintenance by lump sum
liquidation? What is the text and texture of provision, if read in the light of mischief to be avoided,
justice to be advanced?
Issue: At the time of divorce the liquidated sum paid must be reasonable and not an illusory amount.
Held: Conclusion is clear that liquidated sum paid at the time of divorce must be reasonable and not
an illusory amount, even by harmonising payments under personal and customary laws with obligations
under Section 125 to 127 of Cr.P.C. This will release quondam husband from continuing liability, only if
sum paid is realistically sufficient to maintain ex-wife and salvage her from destitution which is the
anathema of the law. To complex provisions of Sections 125 to Section 127 Cr.P.C., this perspective of
social justice alone does justice.
—————

Code of Criminal Procedure, 1973 111

 Death Sentence – Rarest of Rare Case
Bachan Singh versus State of Punjab
[AIR 1980 SC 898: 1980 (2) SCC 684: 1980 Cri LJ 636: 1983 (1) SCR 145]
Decided on: 09 May 1980
Bench: YV Chandrachud, CJ and AC Gupta, NL Untwalia, PN Bhagwati and RS Sarkaria, JJ.
Facts: Sessions Judge tried and convicted and sentenced appellant to death under Section 302 I.P.C.
for 3 murders of P, DB and VB. Death sentence confirmed by HC and appeal dismissed. By special
leave he appealed to SC. SC Bench heard appeal and directed records of case to be submitted to CJ,
for conducting larger Bench to resolve constitutional validity of death penalty for murder provided in
Section 302 I.P.C. and sentencing procedure embodied in Section 354(3) Cr.P.C.
Issue: Constitutional validity of death penalty provided in Section 302, I.P.C. and sentencing procedure
embodied in Section 354(3) Cr.P.C.
Held: In so far as Section 302 I.P.C. provides for death sentence and Section 354(3) Cr.P.C. is constitutionally
valid. Under Section 354(3) Cr.P.C. exercise of discretion should be exceptional and grave circumstances
and imposition of death sentence should only be in rarest of rare cases. Challenge to constitutionality
of impugned provisions contained in Section 302 I.P.C. and Section 354(3) Cr.P.C. rejected. Only effect
is that application of these principles is now to be guided by paramount beacons of legislative policy
discernible from Section 354(3) and 235(2) viz, (i) Extreme penalty can be inflicted only in gravest cases
of extreme culpability, ii) In making choice of sentence, in addition to circumstances of offences, due
regard must be paid to circumstances of offender also.
—————

Acquittal by Court after Illegal Detention for 14 Years

Rudal Shah versus State of Bihar
[AIR 1983 SC 1086: 1983 (4) SCC 141: 1983 Cri LJ 1644: 1983 (3) SCR 508]
Decided on: 01 August 1983
Bench: YV Chandrachud, CJ and Ranganath Misra and Amarendra Nath Sen, JJ.
Facts: On 3-6-68 petitioner was acquitted by Court of Sessions, Muzaffarpur, Bihar but released from
jail on 16-10-82 more than 14 years after he was acquitted. BY HCP, petitioner asked for his release
on ground that his detention in jail is unlawful. Ancillary reliefs like rehabilitation, reimbursements of
expenses asked for by him, which he may incur for medical treatment and compensation for illegal
incarceration.
Issue: Whether SC can pass order of compensation for infringement of FR by officers under Article 32?
Held: Under Article 32 SC can pass order of compensation for infringement of FR. Article 32 cannot
be used as a substitute for enforcement of rights and obligations which can be enforced efficiently
through ordinary processes of courts, Civil and Criminal. Whether SC in exercise of its jurisdiction under
Article 32 can pass an order for payment of money if such an order is in the nature of compensation
consequential upon deprivation of FR. Petitioner was illegally detained for 14 years after his acquittal
in a full dressed trial. He filed HCP in SC for his release from illegal detention. If petitioner files suit
to recover damages for his illegal detention, decree for damages would have to be passed in that suit,
though in absence of evidence, it is not possible to predict the precise amount which would be decreed
in his favour. SC’s refusal to pass order of compensation in favour of petitioner will be doing lip service
to his FR to liberty which the State Government has grossly violated. Article 21 will be demanded of

112 Code of Criminal Procedure, 1973

its significant content which guarantees right to life and liberty if power of SC were limited to passing
orders to release from illegal detention.
—————

Manufacture and Sale of Hazardous Products,

Liability of Large Economic Enterprises
MC Mehta versus Union of India
And
Shriram Foods and Fertilizer Industries versus Union of India
[AIR 1987 SC 965: 1986 (1) SCR 312: 1986 (2) SCC 176: 1986 (1) SCALE 199]
Decided on: 17 February 1986
Bench: PN Bhagwati, CJ and DP Madon and GL Oza, JJ.
Facts: DCM, Public Ltd. Company having registered office in Delhi, runs an enterprise called Shriram
Foods and Fertilizer Industries, which has several units engaged in manufacture of caustic soda,
chlorine, hydrochloric acid, bleaching powder, superphosphate, sulphuric acid etc. Major leakage of
oleum gas took place on 4.12.85 from one of the units of Shriram. This leakage affected a large number
of persons, both amongst public and workmen. An Advocate practising in Tis Hazari Courts died on
account of inhalation of oleum gas. Within two days of disaster another minor leakage took place as a
result of the escape of oleum gas from pipe joints. Order dated 6 December 1985 under Section 133(1)
Cr.P.C. made by District Magistrate Delhi directing and requiring Shriram within 2 days of issuance
of order to cease carrying on the occupation of manufacturing and processing hazardous and lethal
chemicals and gases including chlorine, oleum etc at their establishment in Delhi and remove such
chemicals and gases within 2 days from said place and not again to keep or store them at same
place or to appear on 17 December 1985 in Court of District Magistrate Delhi to show cause why order
should not be enforced. In exercise of power conferred under Section 40(2) of Factories Act, 1948 on
7 December 1985. Inspector of Factories Delhi issued order prohibiting Shriram from using caustic
chloride and sulphuric acid plants till adequate safety measures are adopted and imminent danger
to human life is eliminated. On 13 December 1985. Show Cause Notice issued by AC (Factories) MCD,
calling upon Shriram to show cause as to why action for revocation of its licence should not be taken
under Section 430(3) of DMC Act for violation of terms and conditions of licence.
Issue: Shriram Foods and Fertilizer whether they should be allowed to restart? Large enterprises
engaged in manufacture and sale of hazardous products should be allowed to continue to function in
thickly populated areas and liability.
Held: Subject to certain conditions Shriram Foods and Fertilizer Industries should be allowed to
be restarted. Industrial hazards cannot be completely eliminated but could be minimised by strict
compliance of safety measures. By adopting a policy of closing down all hazardous industries simply
by reason of danger/risk to community court cannot hamper pace of development.
—————

Code of Criminal Procedure, 1973 113

 Corruption Case Triable by Special Judge – SC not Competent
to Issue Direction Transferring Case to HC Judge
AR Antulay versus RS Nayak
[AIR 1988 SC 1531: 1988 Cri LJ 1661: 1988 (2) SCC 602: 1988 (25) ACC 448]
Decided on: 29 April 1988
Bench: Sabyasachi Mukherji, Ranganath Misra, GL Oza, BC Ray,
S Natarajan, MN Venkatachaliah and S Ranganathan, JJ.
Facts: Respondent No. 1 filed a complaint before Additional MM Bombay against appellant, the then
CM of Maharashtra, on 1 September 1981 for alleged offences under Sections 161 and 165 I.P.C. and
other provisions. Magistrate refused to take cognizance of offences without sanction for prosecution.
Then an application was filed before Bombay HC. On 28 July 1982 Governor of Maharashtra granted
sanction under Section 197 Cr.P.C. in respect of 5 items and refused sanction in respect of all other
items. Respondent No. 1 filed a fresh complaint against the appellant before the Special Judge bringing
in many more allegations. It was registered as a special case. The Special Judge issued the process
to appellant without relying on sanction order on 28 July 1982. The State Government notified the
appointment of Sh. RB Sule as special Judge to try offences specified under Section 6(1) of 1952 Act.
On 25 July 1983 Special Judge discharged appellant holding that member of Legislative Assembly is a
public servant and no valid sanction for prosecuting the appellant was there. On 6 February 1984 in
appeal by Respondent No. 1, under Article 136, the Constitution Bench of SC held that a member of the
Legislative Assembly is not a public servant and set aside the order of the Special Judge. SC instead of
remanding the case to Special Judge for disposal in accordance with law. Suo Motu withdrew a special
case pending in the Court of Special Judges, Bombay and transferred the same to Bombay HC.
Issue: Whether direction for transfer of case by SC is legally proper?
Held: Direction given by SC was not per incuriam. Exclusive jurisdiction created under Section 7(1) of
1952 Act, when brought to SC notice, precluded exercise of power under Section 407 Cr.P.C. On this
aspect there was no argument, no submission and decision.
—————

Shah Bano Case – Payment of Maintenance under

Section 125 Cr.P.C. to divorced Muslim Wife
Mohd. Ahmed Khan versus Shah Bano Begum
[AIR 1985 SC 945: 1985 Cri LJ 875: 1985 (2) SCC 556: 1985 (3) SCR 844]
Decided on: 23 April 1985
Bench: YV Chandrachud, CJ and DA Desai, ES Venkataramiah,
O Chinnappa Reddy and Ranganath Mishra, JJ.
Facts: Appeal against application filed by divorced Muslim Woman against appellant husband for
maintenance under Section 125 Cr.P.C. Appellant advocate married respondent in 1932 and 5 children
born from wedlock. In 1975 the husband drove the wife out of the matrimonial home. Wife filed an
application under Section 125 Cr.P.C. in April 1978. Appellant divorced respondent in Nov. 1978 by
an irrevocable talaq. It was his defence to the respondent’s application for maintenance that she
had ceased to be his wife. He was under no obligation to provide maintenance to his wife. That he
had already paid maintenance @ Rs. 200/- pm to her for about 2 years. During the period of Iddat
appellant, also deposited Rs. 3000/- in Court by dower. Magistrate directed appellant to pay a paltry

114 Code of Criminal Procedure, 1973

sum of Rs. 28/- pm. To respondent by way of maintenance in August 1979. In a revisional application
filed by respondent MPHC enhanced maintenance to Rs. 179.20 pm. Appeal filed by appellant in SC
finding the amount excessive.
Issue: Whether Section 125 Cr.P.C. applies to Muslim, which provides maintenance to wives (which
includes divorced wives who have not remarried)? If a divorced woman received the whole amount
payable to her on divorce (under any customary or personal law under Section 127 Cr.P.C., maintenance
order may be cancelled by Court. Can it be said that under Mohammedan Law, Mehr (or dower) is an
amount payable “on divorce”, which would absolve Muslim Husband from payment of maintenance
under Section 127 Cr.P.C.?
Held: Mehr (or dower) does not absolve Muslim husband from payment of maintenance under Section
127 Cr.P.C.. Section 125 Cr.P.C. applies to divorced Muslim wives who have not remarried.
—————

Custodial Death – Compensation – Contravention of Fundamental Freedom

and Human Rights by State and its Agencies
Nilabati Behera versus State of Orissa
[AIR 1993 SC 1960: 1993 Cri LJ 2899: 1993 (2) SCR 581: 1993 (2) SCC 746]
Decided on: 24 March 1993
Bench: JS Verma, AS Anand and MN Venkatachaliah, JJ.
Facts: Letter written by petitioner dated 14 September 1988 sent to SC, treated as WP under Article 32
of Constitution for determining compensation claim consequent upon death of petitioner’s son aged
22 years in police custody. Allegation of custodial death as a result of multiple injuries inflicted on him,
and contravention of F.R. under Article 21 of the Constitution. State of Orissa and its police officers, ASI
and constable implemented as respondents. In view of controversy relating to the cause of death of
the petitioner’s son, direction was given by this court on 4-3-91 to the District Judge to hold inquiring
into the matter and submit a report. The District Judge submitted a report that death occurred on
account of multiple injuries inflicted on him while he was in police custody. Doctor deposed that all
injuries were caused by hard and blunt objects, injuries on face and left temporal were post mortem
while rest were ante-mortem.
Issue: Whether through WP Compensation for Custodial death can be available?
Held: Relief of monetary compensation as exemplary damages, in proceedings under Article 32 by SC
and under Article 226 by HC for established infringement of indefeasible right guaranteed under Article
21 of Constitution is remedy available in public law. It is based on strict liability for contravention
of guaranteed basic and indefeasible rights of citizens. When the Court is relieved by granting
compensation in proceedings under Article 32 and 226 of Constitution seeking enforcement of FRs, it
does so under public law by way of penalising wrongdoers and fixing liability for public wrongdoings
on the State which has failed in its public duty to protect FRs of citizens. State has the right to be
indemnified by and take such action as way available to it against wrongdoer in accordance with law,
through appropriate proceedings. For the reasons recorded by Verma J, it is agreed that the State of
Orissa should pay a sum of Rs. 1.50 lacs to the petitioner and a sum of Rs 1,000/- by way of costs to
the SC Legal Aid Committee.
—————

Code of Criminal Procedure, 1973 115

 Quashing of FIR by HC
Rupan Deol Bajaj versus KPS Gill
[AIR 1996 SC 309: 1996 Cri LJ 381: 1995 (6) SCC 194: 1995 (5) SCALE 670]
Decided on: 12 October 1995
Bench: AS Anand and MK Mukherjee, JJ.
Facts: Appellant, IAS Officer, Pb Cadre and working as Special Secretary, Finance, lodged complaint
with IGP, Chandigarh UT against respondent, DGP alleging commission of offence under Sections 341,
342, 352 354, 509, IPC at a dinner party. Case was registered and investigation taken up, treating that
Complaint as FIR. Her husband, senior IAS officer of PB Cadre, lodged a complaint in the Court of CJM
for the same offences, alleging that the respondent being a high ranking Police Officer, Police neither
arrested him nor conducted investigation in fair and impartial manner, in connection with a case
registered by police on his wife’s complaint. He filed a complaint apprehending that the Police would
conclude the investigation by treating the case as untraced. In the meantime, the respondent accused
HC by filing a petition under Section 482 CrPC for quashing the FIR and complaint. This was allowed
by HC and FIR and Complaint were quashed.
Issue: HC under what circumstances and in what categories can quash FIR or complaint in exercise of
its power under Article 226 of Constitution or under Section 482 CrPC?
Held: HC is not justified in embarking upon enquiry as the stage of quashing of FIR or complaint, as to
probability, reliability or genuineness of allegations made therein. If allegations made are so absurd and
inherently improbable that no prudent person can ever reach a just conclusion, that there is sufficient
ground for proceeding against the accused, FIR or complaint may be quashed. CJM directed to take
cognizance upon police report in respect of offences under Sections 354, 409 IPC and try himself case
in accordance with law.
—————

Custodial Death, Torture of any form or Cruel, Inhuman or Degrading Treatment Fall
within Inhibition of Article 21 of Constitution
DK Basu versus State of West Bengal
[AIR 1997 SC 610: (1997) 1 SCC 416: 1997 Cri LJ 743: 1996 (9) SCALE 298]
Decided on: 18 December 1996
Bench: Kuldip Singh and AS Anand, JJ.
Facts: Letter addressed to CJI by Executive Chairman, Legal Aid Services, WB, Non-Political. Organisation,
registered under Societies Registration Act, drawing his attention to news items published in Telegraph,
Statesman and Indian Express regarding deaths in police custody and lockups. That it was imperative
to examine the issue in depth, develop’ custody jurisprudence’ and formulate modalities for awarding
compensation to victim and/or family members of victim for atrocities in police custody. Considering
the importance of issue raised, letter treated as WP and notice issued to respondents, State of WB.
Counter filed by State of WB that police was not hushing up any matter of lock up death and action
being taken against police personnel found responsible for such death. In response to notice, Affidavits
filed by State of WB, Orissa, Assam, HP, MP, TN Meghalaya, Maharashtra, UT of Chandigarh.
Issue: The moment a policeman arrests him, does a citizen shed off his FR to life and can the right to
life of the citizen be put in abeyance on his arrest?

116 Code of Criminal Procedure, 1973

Held: Rights inherent in Articles 21 and 22(1) of Constitution, to be jealousy and scrupulously protected.
Custodial death is perhaps one of the worst crimes in civilised society governed by Rule of Law.
Precious Rights guaranteed by Article 21 of Constitution cannot be denied to convicts, undertrials,
detenue and other prisoners in custody, except according to procedure established by law by placing
reasonable restrictions as permitted by law. Monetary compensation is an appropriate and effective
and sometimes the only suitable remedy for redressal of established infringement of FR to life of
citizens by public servants and State is vicariously liable for their acts. Quantum of compensation
depends upon peculiar facts of each case and no straight jackpot formula can be evolved in that behalf.
—————

Best Bakery Case – Protection of Witnesses

Zahira Habibulla H Sheikh versus State of Gujarat
[AIR 2004 SC 3114: 2004 (4) SCC 158: 2004 Cri LJ 2050: 2004 (4) SCALE 375]
Decided on: 12 April 2004
Bench: Doraiswamy Raju and Arijit Pasayat, JJ.
Facts: Unruly mob burnt down business concern known as “Best Bakery” at Vadodara between 8.30 pm
on 1 March 2002 and 11 am of 2 March 2002, wherein 14 persons died. Appellant was an eyewitness who
lost her family members, helpless women and innocent children. Attacks were part of retaliatory action
to avenge the killing of 56 persons burnt to death in Sabarmati Express near Godhra in Gujarat. Many
other persons were eyewitnesses. After investigation, a charge sheet was filed. Purported eyewitnesses
resigned from statements made during the investigation. Trial court directed acquittal of accused
persons. Appellant appeared before NHRC stating she was threatened by powerful politicians, not to
depose against accused persons. State filed appeal against judgement of acquittal before Gujarat HC
which upheld acquittal of respondent accused.
Appellant and One organisation,” Citizen for Justice and Peace” filed SLP challenging judgement of
acquittal affirmed by HC. NHRC moved SC and its SLP to be treated as petition under Article of
Constitution.
Issue: Correctness of HC decision in acquitting accused and dismissing petition for adducing additional
evidence under Section 391 CrPC and direction for retrial of case.
Held: In the background of nature of additional evidence sought to be adduced and perfunctory manner
of trial conducted on basis of tainted investigation, fit and proper case where retrial is must and
essentially called for in order to save and preserve justice delivery system unsullied and unscathed by
vested interests.
—————

Medical Negligence – Liability of Doctors

Jacob Mathew versus State of Punjab
[AIR 2005 SC 3180: 2005 (6) SCC 1: 2005 (6) SCALE 130: 2005 (122) DLT 83]
Decided on: 05 August 2005
Bench: RC Lahoti, CJ and GP Mathur and PK Balasubramanyam, JJ.
Facts: Patient admitted in private ward of Hospital. He felt difficulty in breathing. His son contacted
a duty nurse, who in turn called the doctor. No doctor turned up for about 20-25 minutes. Then two
doctors came to the patient’s room. Oxygen cylinder connected to the mouth of the patient, but

Code of Criminal Procedure, 1973 117

 breathing problems increased further. Oxygen gas cylinder was found to be empty. No other gas cylinder
available in the room. Another gas cylinder was brought from the adjoining room but no arrangement
to make it functional and 5 to 7 minutes wasted and the doctor declared the patient dead. FIR
lodged alleging negligence on part of doctors and offence under Sections 304A, 34 IPC registered and
investigated. Judicial Magistrate framed charges against doctors. Revision filed against dismissed by
Sessions Judge, petition under Section 482 CrPC in HC for quashing FIR dismissed. Appeal filed before
SC by special leave.
Issue: Liability for negligence under civil and criminal law of medical professionals.
Held: For negligence to amount to offence, an element of mens-rea must exist. Jurisprudential concept
of negligence differs in Civil and Criminal law. In the context of the medical profession negligence calls
for treatment with difference. So long a doctor follows practice acceptable to the medical profession
of that day, he cannot be held liable for negligence merely because a better alternative course or
method of treatment is also available or a more skilled doctor would not have followed that practice
which the accused followed. All averments in complaint even if held to be proved, do not make out a
case of criminal rashness or negligence on part of the accused appellant. Hospitals may be liable in
civil law, but accused appellant cannot be proceeded against under Section 304A, IPC.
—————

Criminal Liability of Corporate Body or Company

Standard Chartered Bank versus Directorate of Enforcement
[AIR 2005 SC 2622: 2005 (5) SCALE 97: 2005 (4) SCC 530: 2005 Cri LJ 4917]
Decided on: 05 May 2005
Bench: N Santosh Hegde, KG Balakrishnan, DM Dharmadhikari, Arun Kumar and BN Srikrishna, JJ.
Facts: Appellant in appeal contended that no criminal proceedings can be initiated against appellant
company for offence. Under Section 56(1) FERA Act as minimum punishment prescribed under Section
56(1)(i) is imprisonment for a term which should not be less than 6 months with fine. Appellant relied
on Assistant Commissioner versus Valliappa Textiles wherein it was held that company cannot be
prosecuted for offences which require imposition of mandatory term of imprisonment coupled with
fine and where punishment provided is imprisonment and fine. Court cannot only impose a fine.
Issue: Offences for which sentence of imprisonment is mandatory, Whether company or Corporate
Body could be prosecuted?
Held: No immunity to companies from prosecution merely because prosecution is in respect of offences
for which punishment prescribed is mandatory imprisonment. Assistant Commissioner versus Velliappa
Ltd. overruled. Corporate bodies, such as firms or companies undertake a series of activities that affect
life, liberty and property of citizens. Large scale financial irregularities are done by various corporations.
Corporate vehicles now occupy such a large portion of industrial, commercial and sociological sectors
that amenability of Corporation to criminal law is essential to have a peaceful society with a stable
economy. Offences under Section 56(1) FERA if committed by Company or Corporate bodies, would
have serious financial consequences affecting the country’s economy. Legislative intent was not to
give immunity to companies for offences, which involve amount or value of more than Rs. 1 lac and to
prosecute companies only for offences involving amount or value less than Rs. 1 lac.
—————

118 Code of Criminal Procedure, 1973

 Defamation – Provisions of Sections 499, 500 IPC Constitutionally Valid
Subramaniam Swamy versus Union of India, Ministry of Law
[AIR 2016 SC 2728: 2016 (5) SCALE 379: 2016 (7) SCC 221: 2016 Cri LJ 3214]
Decided on: 13 May 2016
Bench: Dipak Misra and Prafulla C Pant, JJ.
Facts: Assertion by Union of India and complainant in WPs. Under Article 32 of the Constitution,
reasonable restrictions are based on paradigms and parameters of the Constitution that are structured
and pedestaled on doctrine of non-absoluteness of any FR, cultural and social ethos, need and feel
of time. For every right engulfs and incorporates duty to respect others rights and ensure mutual
compatibility and of individuality based on collective harmony and conceptual grace of eventual social
order.
Issue: Whether Sections 499 and 500 of the Indian Penal Code, 1860 and Sections 199(1) to 199(4) of
the Code of Criminal Procedure, 1973 are constitutionally valid?
Held: Constitutional validity of Sections 499 and 500 IPC and Section 199 CrPC upheld by court. Criminal
defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free
speech that can be characterised as disproportionate. Right to free speech cannot mean that citizens
can defame others. Protection of reputation is a FR. It is also a human right. Cumulatively it serves
the social interest. In case of criminal defamation neither any FIR can be filed nor can any direction
be issued under Section 156(3) CrPC. The offence has its own gravity and hence, responsibility of the
Magistrate is more. In matters of criminal defamation a heavy burden is on the Magistracy to scrutinise
the complaint from all aspects. The Magistrate has also to keep in view the language employed in
Section 202 CrPC which stipulates about the residence of the accused at a place beyond the area in
which the Magistrate exercises his jurisdiction. He must be satisfied that ingredients of Section 499
CrPC are satisfied. Application of mind in the case of complaint is imperative.
—————

Prevention of Honor Killing

Shakti Vahini versus Union of India
[AIR 2018 SC 1601: 2018 (5) SCALE 51: 2018 (7) SCC 192: 2019 (1) HLR 267]
Decided on: 27 March 2018
Bench: Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ.
Facts: By order passed by National Commission for women petitioner organisation authorised for
conducting Research Study on Honor Killings in “Haryana and Western UP. Social pressure and
consequent inhuman treatment by core groups who arrogate to themselves the position of law makers
and impose punishments which are extremely cruel instill immense fear that compels victims to
commit suicide or to suffer irreparably at hands of these groups. Petition Under Article 32 preferred
seeking directions to Respondents State Governments and Central Government to take preventive
steps to combat honour crimes. To submit a National Plan of Action and State Plan of Action to curb
crimes of said nature and further to direct State Governments to constitute special cells in each
district which can be approached by couples for their safety and well – being.
Issue: To prevent honour crimes what directions need to be issued?
Held: Preventive Steps. State Governments should forthwith identify Districts, tax-divisions and or
villages where instances of Honor Killing or assembly or Khap Panchayats reported e.g., last five years.

Code of Criminal Procedure, 1973 119

 Directives/advisories to Superintendent of police of concerned districts to be issued by Secretary, Home
Department of concerned states for ensuring that officers in charge of police stations of identified areas
are extra cautious. If information about any proposal of Khap Panchayat comes to the knowledge of
any police officer or officer of District. Administration, he shall forthwith inform his immediate superior
officer and intimate Jurisdictional Dy. Superintendent of Police and Superintendent of Police. They shall
immediately interact with members of Khap Panchayat and impress upon them that convening of such
meetings/gatherings is not permissible in law and eschew from going ahead with such meetings. Home
department of GOI must take initiative and work in coordination with State Governments for subsisting
law enforcement agencies and by involving all stakeholders to identify measures for prevention of such
violence. Different State Governments and centres ought to work on sensitization of law enforcement
agencies to mandate social initiative and awareness to curb such violence.

Remedial Measures
Despite preventive measures taken by State Police, if it comes to notice of local police that Khap
Panchayat has taken place and it has passed any diktat to take action against a couple/family of an
inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance),
jurisdictional police official shall cause to immediately lodge an F.I.R. under appropriate provisions of
Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC, 1860.
Young bachelor-bachelorette couples whose relationship is being opposed by their families/local
community/Khaps.
Young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their
families/local community/Khaps.)
After marriage, if the couple so desire they can be provided accommodation on payment of nominal
charges in the safe house initially for a period of one month to be extended on monthly basis but not
exceeding one year in aggregate, depending on their threat assessment on case to case basis.
District Superintendent of police, upon receipt of such report, shall direct Deputy Superintendent of
Police in-charge of concerned sub-division to cause to register an F.I.R. against persons threatening
the couple(s) and if necessary invoke Section 151 of Criminal Procedure Code, 1973.

Punitive Measures
States directed to take disciplinary action against concerned officials if it is found that
(i) such official(s) did not prevent the incident, despite having prior knowledge of it, or
(ii) where the incident had already occurred, such official(s) did not promptly apprehend and institute
criminal proceedings against the culprits.
Any failure by either police or district officer/officials to comply with aforesaid directions shall be
considered as an act of deliberate negligence and/or misconduct for which departmental action must
be taken under service rules.
Criminal Cases pertaining to honour killing or violence to the couple(s) shall be tried before designated
Court/Fast Track Court earmarked for that purpose. Trial must proceed on a day to day basis to be
concluded preferably within six months from date of taking cognizance of the offence.
—————

120 Code of Criminal Procedure, 1973

 Mob Violence and Lynching – Guidelines for Prevention
Tehseen S Poonawalla versus Union of India
[AIR 2018 SC 3354: 2018 (9) SCALE 4: 2018 (9) SCC 501: 2018 (4) Civil LJ 657]
Decided on: 17 July 2018
Bench: Dipak Misra, CJI, AM Khanwilkar and DY Chandrachud, JJ.
Facts: WP under Article 32 preferred by petitioner, social activist for commanding Respondent No. 3 to
8, states to take immediate and necessary action against cow protection groups indulging in violence;
and further to issue a writ or direction to remove violent contents from social media uploaded and
hosted by said groups. Also declare Section 12 of Gujarat Animal Prevention Act, 1954 Section 13 of
Maharashtra Animal Prevention Act, 1976 and Section 15 of the Karnataka Prevention of Cow Slaughter
and Cattle Preservation Act, 1964 as unconstitutional.
Issue: To control mob violence and lynching whether any directions to be issued?
Held: Guidelines: Preventive Measures.
The State Governments shall designate a senior police officer, not below the rank of Superintendent
of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank
officers in the district for taking measures to prevent incidents of mob violence and lynching.
(i) The Nodal Officer, so designated shall hold regular meetings (at least once a month) with the local
intelligence units in the district along with all Station House Officers of the district so as to identify
the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps
to prohibit instances of dissemination of offensive material through different social media platforms
or any other means for inciting such tendencies. It shall be the duty of every police officer to cause a
mob to disperse, by exercising his power under Section 129 of CrPC.
The Central and the State Governments should broadcast on radio and television and other media
platforms including the official websites of the Home Department and Police of the States that lynching
and mob violence of any kind shall invite serious consequence under the law.
The police shall cause to register FIR under Section 153A of, IPC and/or other relevant provisions of
law against persons who disseminate irresponsible and explosive messages and videos having content
which is likely to incite mob violence and lynching of any kind.

Remedial Measures
If it comes to the notice of the local police that an incident of lynching or mob violence has taken
place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue
delay, under the relevant provisions of IPC and/or other provisions of law.
Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty
bound to ensure that the investigation is carried out effectively and the charge -sheet in such cases
is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as
the case may be.
The State Governments shall prepare a lynching/mob violence victim compensation scheme in the
light of the provisions of Section 357A of CrPC within one month from the date of this judgement.
The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track
Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day
to day basis.

Code of Criminal Procedure, 1973 121

 The victim(s) or the next kin of the deceased in cases of mob violence and lynching shall receive free
legal aid if he or she chooses and engage any advocate of his/her choice from amongst those enrolled
in the legal aid panel under the Legal Services Authorities Act, 1987.

Punitive Measures
States are directed to take disciplinary action against the concerned officials if it is found that
(i) such official (s) did not prevent the incident, despite having prior knowledge of it, or
(ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute
criminal proceedings against the culprits.
Wherever it is found that a police officer or an officer of the district administration has failed to
comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious
trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate
negligence and/or misconduct for which appropriate action must be taken against him/her and not
limited to departmental action under the service rules.
—————

Guidelines – Inherent Powers of HC

Asian Resurfacing of Road Agency Pvt. Ltd. versus Central Bureau of Investigation
[AIR 2018 SC 2039: 2018 (5) SCALE 269: 2018 (16) SCC 299: 2018 (187) AIC 38]
Decided on: 28 March 2018
Bench: Adarsh Kumar Goel, Rohinton Fali Nariman and Navin Sinha, JJ
Facts: FIR at instance of MCD recorded under Sections 120B, read with Section 420, 467, 468, 471, 477A
of IPC and Sections 13(2) read with Section 13(1)(d) of PC Act, alleging causing wrongful loss to MCD by
using false invoices of oil companies relating to transportation of Bitumen for use in Dense Carpeting
Works of roads. After investigation, a charge sheet was filed against Appellant and certain employees of
MCD by Respondent-CBI before the Special Judge. Appellants filed applications for discharge, however,
Special Judge, CBI directed framing of charges after considering material before court. Appellants filed
revision before High Court against order framing charge. Revision Petition converted into Writ Petition.
In view of conflict of views in two judgements DB reframed questions. Division bench held that the
order framing charge was an interlocutory order and no revision petition under Section 401 read with
Section 397(2) of Cr.P.C. would lie to the High Court against such an order. Any petition presented
under Section 482 of Cr.P.C. Article 227 of the Constitution of India, 1950 shall be entertained despite
the statutory bar contained under the act. However, even if the petition is entertained by the court
under Section 482 of Cr.P.C. or article 227 of Constitution of India, no order of stay shall be passed in
a routine manner in light of the statutory bar contained under the act. The exercise of power under
Article 227 of Constitution of India, 1950 or Section 482 of Cr.P.C. should be exercised sparingly and
under exceptional circumstances to meet the ends of justice.
Issue: Order framing charge. Whether interlocutory order?
Held: Order framing charge held is not purely an interlocutory order nor a final order. Jurisdiction of
High Court is not barred irrespective of label of petition, be it under Sections 397 or 482 Cr PC or Article
227 of Constitution. Said jurisdiction is to be exercised consistent with the legislative policy to ensure
expeditious disposal of a trial without the same being in any manner hampered.
Concurring. Justice Nariman.
—————

122 Code of Criminal Procedure, 1973

 Acid Attack – Horrifying form of Gender Based Violence
Mahender versus State
[2013 (10) AD (Del) 577: 2014 (8) RCR (Criminal) 3379
Decided on: 01 November 2013]
Bench: Kailash Gambhir and Inderjeet Kaur, JJ, High Court of Delhi
Facts: Deceased victim, was a woman of 24 years of age who had a 6 year old boy from a previous
marriage. Her second husband was an attacker who could not bear rejection after she decided to
divorce him. Victim in her dying declaration said the accused used to threaten her even to the extent
of physically eliminating her if she dared to divorce him.
Issue: Whether acid attack is gender based violence of horrifying form?
Held: Relying upon dying declaration of victim by Court it dismissed plea of accused who contended
that he was falsely implicated in case and not even married to victim and upheld sentence of L.I. given
by the Trial Court.
—————

Country Liquor is “Food”

State of HP versus Raja Ram
[1991 (1) Shimla LC 273: 1990 (2) FAC 231: 1991 (2) Sim LJ 1117]
Decided on: 22 August 1990
Bench: VK Mehrotra and Kamlesh Sharma, JJ., High Court of HImachal Pradesh at Shimla
Facts: Single Judge of HC in Associated Distilleries Pvt. Ltd., Hissar, Haryana versus State of H.P. took
the view that ‘country liquor’ is not food within the meaning of the PFA Act. Institution of proceedings
of that term up to the PFA Act. Institution of proceedings against applicants under the PF Act was
unsustainable in law. Proceedings quashed in exercise of power under Section 482 CrPC.
Issue: Whether ‘Country Liquor’ falls within the definition of “food”?
Held: It was the opinion of the Court that for purposes of provisions of PFA Act, ‘liquor’ (including
country liquor) is included in the definition of ‘food’ defined under Section 2(1) of PF Act.
—————

Supreme Court Guidelines

Amicus Curiae – Appointment where there is Possibility of

‘Life Sentence’ or ‘Death Sentence’
Anokhi Lal versus State of Madhya Pradesh
[2019 SCC OnLine SC 1637: AIR 2020 SC 232: 2020 (1) SCALE 75: JT 2019 (12) SC 520
Criminal Appeal Nos. 62-63 of 2014]
Dated: 18 December 2019
Bench: UU Lalit, Indu Malhotra and Krishna Murari.
Issue: Fair trial, whether expeditious disposal required in criminal matters.
y In all cases where there is a possibility of life sentence or death sentence, learned Advocates who
have put in minimum of 10 years practice at the Bar alone are considered to be appointed as Amicus
Curiae or through legal services to represent an accused.

Code of Criminal Procedure, 1973 123

 y In all matters dealt with by the High Court concerning confirmation of death sentence, Senior
Advocates of the Court must first be considered to be appointed as Amicus Curiae.
y Whenever any counsel is appointed as Amicus Curiae, some reasonable time may be provided to
enable the counsel to prepare the matter. There cannot be any hard and fast rule on that behalf.
However, a minimum of seven days’ time may normally be considered to be appropriate and adequate.
y Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be
granted to have meetings and discussion with the concerned accused.
—————

Arrest – Unnecessary Arrest and Causal and Mechanical Detention

Arnesh Kumar versus State of Bihar
[(2014) 8 SCC 273: 2014 (8) SCALE 250: AIR 2014 SC 2756: 2014 Cri LJ 3707
Criminal Appeal No. 1277 of 2014]
Dated: 02 July 2014
Bench: Chandramauli Kr Prasad, Pinaki Chandra Ghose.
Court has issued following directions to prevent unnecessary arrest and causal and mechanical
detention. Directions were issued in an endeavour to ensure that police officers do not arrest the
accused unnecessarily and Magistrate do not authorise detention casually and mechanically in cases
under Section 498A, I.P.C., the Court gave certain directions (however, the directions apply also to other
cases where offence is punishable with imprisonment of not more than seven years) which include:
y All the State Governments to instruct its police officers not to automatically arrest when a case
under Section 498A of the I.P.C. is registered but to satisfy themselves about the necessity for arrest
under the parameters laid down above flowing from Section 41, Cr.P.C.;
y All police officers be provided with a check list containing specified sub-clauses under Section 41(1)
(b)(ii);
y The police officer shall forward the checklist duly filed and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the accused before the Magistrate for further
detention;
y The Magistrate while authorising detention of the accused shall peruse the report furnished by
the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will
authorise detention;
y The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the Magistrate which may be extended by the
Superintendent of police of the district for the reasons to be recorded in writing;
y Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks
from the date of institution of the case, which may be extended by the Superintendent of Police of
the District for the reasons to be recorded in writing;
y Failure to comply with the directions aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also be liable to be punished for contempt of
court to be instituted before High Court having territorial jurisdiction.
y Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned
shall be liable for departmental action by the appropriate High Court.

124 Code of Criminal Procedure, 1973

y We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A
of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where
offence is 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.
y We direct that a copy of this judgement be forwarded to the Chief Secretaries as also the Director
Generals of Police of all the State Governments and the Union Territories and the Registrar General
of all the High Courts for onward transmission and ensuring its compliance.
—————

Section 498A I.P.C. Misuse

Rajesh Sharma versus The State of Uttar Pradesh
[AIR 2017 SC 3869: 2017 (8) SCALE 313: 2018 (10) SCC 472: 2018 Cri LJ 3593]
Dated: 27 July 2017
Bench: Justice AK Goel and Justice UU Lalit.
The Directions were issued to regulate the purported misuse of Section 498A, I.P.C.
After careful consideration of the whole issue, Court gives the following directions:—
(i) (a) In every district one or more Family Welfare Committees are constituted by the District Legal
Services Authorities preferably comprising three members. The Constitution and working of
such committees may be reviewed from time to time and at least once in a year by the District
and Sessions Judge of the district who is also the Chairman of the District Legal Services
Authority.
(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/
wives of working officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to
and looked into by such a committee. Such a committee may have interaction with the parties
personally or by means of telephone or any other mode of communication including electronic
communication.
(e) Report of such committee be given to the Authority by whom the complaint is referred to it
latest within one month from the date of receipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till the report of the committee is received, no arrest should normally be effected.
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own
merit.
(i) Members of the committee may be given such basic minimum training as may be considered
necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilise the cost fund wherever considered
necessary and proper.
(ii) Complaints under Section 498A and other connected offences may be investigated only by a
designated Investigating Officer of the area. Such designations may be made within one month
from today. Such designated officers may be required to undergo training for such duration (not

Code of Criminal Procedure, 1973 125

 less than one week) as may be considered appropriate. The training may be completed within four
months from today;
(iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or
any other senior Judicial Officer nominated by him in the district to dispose of the proceedings
including closing of the criminal case if dispute primarily relates to matrimonial discord;
(iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant,
the same may be decided as far as possible on the same day. Recovery of disputed dowry items
may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children
can otherwise be protected. Needless to say that in dealing with bail matters, individual roles,
prima facie truth of the allegations, requirement of further arrest/custody and interest of justice
must be carefully weighed;
(v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red
Corner Notice should not be a routine;
(vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District
Judge to club all connected cases between the parties arising out of matrimonial disputes so that
a holistic view is taken by the Court to whom all such cases are entrusted; and
(vii) Personal appearance of all family members and particularly outstation members may not be required
and the trial court ought to grant exemption from personal appearance or permit appearance by
video conferencing without adversely affecting progress of the trial.
(viii) These directions will not apply to the offences involving tangible physical injuries or death.
Note: KINDLY SEE Social Action Forum for Manav Adhikar versus Union of India, (2018 SCC 1501: AIR 2018
SC 4273: 2018 (11) SCALE 191: 2018 (3) Crimes 503) WHEREIN THE ABOVE STATED DIRECTIONS WERE
MODIFIED.
—————

Section 498A I.P.C. Misuse

Social Action Forum for Manav Adhikar versus Union of India
[2018 SCC OnLine SC 1501: AIR 2018 SC 4273: 2018 (11) SCALE 191: 2018 (3) Crimes 503]
Dated: 14 September 2018
Bench: Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud.
Directions were given to prevent misuse of Section 498A, I.P.C.: The Bench comprising Justice Dipak
Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ., modified the directions concerning registration
of FIR, arrest and bail as given in a judgement in Rajesh Sharma versus State of UP. These directions
include:
y Complaints under Section 498A and other connected offences may be investigated only by a
designated Investigating Officer of the area.
y If a settlement is reached between the parties, it is open to them to approach the High Court under
Section 482 seeking quashing of proceedings or any other order.
y If a bail application is filed with at least one day’s notice to the Public Prosecutor/complainant, the
same may be decided as far as possible on the same day. Recovery of disputed dowry items may
not, by itself, be a ground for denial of bail if maintenance or other rights of wife/minor children can
otherwise be protected.

126 Code of Criminal Procedure, 1973

y In respect of persons ordinarily residing out of India impounding of passports or issuance of Red
Corner Notice should not be a routine.
y These directions will not apply in case of tangible physical injuries or death.
—————

FIR – Power of the High Court to Quash Criminal Proceedings or FIR

State of Haryana versus Ch. Bhajan Lal
[AIR 1992 SC 604: 1990 SCR Supp (3) 259: 1992 Cri LJ 527: 1992 (3) SCR 735]
Dated: 21 November 1990
Bench: Pandian, SR (J) Reddy.
“The Supreme Court of India considered the power of the High Court to quash criminal proceedings
or FIR.” The following guidelines to be followed by High Courts in exercise of their inherent powers to
quash a criminal complaint:
y Where the allegations made in the First Information Report or the complaint, even if they are taken
at their face value and accepted in their entirety do not prima facie constitute any offence or make
out a case against the accused.
y Where the allegations in the First Information Report and other materials, if any, accompanying the
F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the
Code.
y Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of any offence and make out a case against
the accused.
y Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate
as contemplated under Section 155(2) of the Code.
y Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.
y Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
y Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.
—————

Arresting and Detaining a Person

DK Basu versus State of West Bengal
[(1997) 1 SCC 416: AIR 1997 SC 610: 1997 Cri LJ 743: 1996 (9) SCALE 298]
Dated: 18 December 1996
Bench: Kuldip Singh, AS Anand.
11 Guidelines were issued by the Supreme Court to be followed in all cases of Arrest and detention till
legal provisions are made in that behalf as preventive measures:

Code of Criminal Procedure, 1973 127

 1. Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name togs with their designations. The particulars of
all such police personnel who handle interrogation of the arrestee must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at
the time of arrest and such memo shall be attested by at least one witness who may be either a
member of the family of the arrestee or a respectable person of the locality from where the arrest
is made. It shall also be counter signed by the arrestee and shall contain the time and date of
arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular place, unless the attesting witness of
the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where
the next friend or relative of the arrestee lives outside the district or town through the legal Aid
Organisation in the District and the police station of the area concerned telegraphically within a
period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest or
detention as soon he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been informed of the
arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major
and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection
Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy
provided to the arrestee.
8. 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 the Director,
Health Services of the concerned State or Union Territory. Director, Health Services should prepare
such a penal for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the
illaqa Magistrate (Are Magistrate) for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
11. A police control room should be provided at all district and state headquarters, where information
regarding the arrest and the place of custody of the arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the arrest and at the police control room it should
be displayed on a conspicuous notice board.
Note: It was further stated that “The requirements need to be strictly followed and the same would
apply with equal force to the other governmental agencies also to which a reference has been made
earlier.” These requirements do not detract from various other directions given by the courts from time
to time in connection with the safeguarding of the rights and dignity of the arrestee.
—————

128 Code of Criminal Procedure, 1973

 Arrest and Detention
Joginder Kumar versus State of Uttar Pradesh
[1994 SCC (4) 260: AIR 1994 SC 1349: 1994 Cri LJ 1981: 1994 (3) SCR 661]
Dated: 25 April 1994
Bench: Venkatachalliah, MN (CJ).
Facts and Issues of the Case: Joginder Kumar (a young lawyer aged 28) was illegally detained over a
period of five days (Earlier he was called to the office of the Senior Superintendent of Police [SSP],
Ghaziabad in connection with some inquiries). A Writ of habeas corpus was filed by the family to find
out his whereabouts. Accordingly the Notices were issued to the State of Uttar Pradesh and to the SSP
to immediately produce Joginder Kumar and answer why he was detained for five days without a valid
reason; why his detention was not recorded by the police in its diary; and why he was not produced
before a magistrate.
Supreme Court issued following Guidelines:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative
or other person who is known to him or likely to take an interest in his welfare told as far as is
practicable that he has been arrested and where he is being detained.
2. The police officer shall inform the arrested person when he is brought to the police station of this
right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest. These
protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
Note: It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy
himself that these requirements have been complied with. The above stated guidelines are not
exhaustive but the same shall be followed in all cases of arrest till legal provisions are made in this
behalf.
—————

Medical Negligence
Jacob Mathew versus State of Punjab and Another
[(2005) 6 SCC 1: AIR 2005 SC 3180: 2005 (6) SCALE 130: 2005 Cri LJ 3710
Criminal Appeal: 144-145 of 2004]
Dated: 05 August 2005
Bench: Justice RC Lahoti, GP Mathur, PK Balasubramanyan.
Highlighted Sections: Indian Penal Code – Section 34 and 304A
The Supreme Court noticed that the cases of doctors (surgeons and physicians) being subjected to
criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants
and sometimes by police on an FIR being lodged and cognizance taken. Further it was stated that
Statutory Rules of Executive Instructions incorporating certain guidelines need to be framed and
issued by the Government of India and/or the State Governments in consultation with the Medical
Council of India. Accordingly the Supreme Court laid down the Guidelines regarding prosecuting medical
professionals as follows:
Absence of knowledge of medical science: The investigating officer and the private complainant cannot
always be supposed to have knowledge of medical science so as to determine whether the act of the

Code of Criminal Procedure, 1973 129

 accused medical professional amounts to rash or negligent act within the domain of criminal law under
Section 304A of I.P.C.
The criminal process once initiated subjects the medical professional to serious embarrassment and
sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him.
At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his
reputation cannot be compensated by any standards. We may not be understood as holding that doctors
can never be prosecuted for an offence of which rashness or negligence is an essential ingredient.
All that we are doing is to emphasise the need for care and caution in the interest of society; for,
the service which the medical profession renders to human beings is probably the noblest of all, and
hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant
prefers recourse to criminal process as a tool for pressurising the medical professional for extracting
uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
Further the Statutory Rules of Executive Instructions incorporating certain guidelines need to be
framed and issued by the Government of India and/or the State Governments in consultation with the
Medical Council of India.
y A private complaint may not be entertained unless the complainant has produced prima facie
evidence before the Court in the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the accused doctor.
y The investigating officer should, before proceeding against the doctor accused of rash or negligent
act or omission, obtain an independent and competent medical opinion preferably from a doctor in
government service qualified in that branch of medical practice that can normally be expected to give
an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.
y “No Arrest in a routine manner unless the investigation officer feels satisfied” – A doctor accused of
rashness or negligence, may not be arrested in a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting
evidence or unless the investigation officer feels satisfied that the doctor proceeded against would
not make himself available to face the prosecution unless arrested, the arrest may be withheld.
NOTE: The above stated guidelines were laid down to prosecute a medical professional for negligence
under criminal law, to govern the prosecution of doctors for offences of which criminal rashness or
criminal negligence is an ingredient.
—————

FIR Registration
Lalita Kumari versus Government of UP
[(2014) 2 SCC 1: 2013 (13) SCALE 559: AIR 2014 SC 187: 2014 Cri LJ 470
W.P. (Crl) No. 68/2008]
Dated: 12 November 2013
Bench: P Sathasivam, BS Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, SA Bobde.
The Supreme Court issued the following Guidelines regarding the registration of FIR. It was held that
“Registration of FIR is mandatory if the information discloses the commission of cognizable offence.”
Guidelines to read as follows:
(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses
commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

130 Code of Criminal Procedure, 1973

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for
an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is
disclosed or not.
(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In
cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith and not later than one week. It must disclose
reasons in brief for closing the complaint and not proceeding further.
(iv) The police officer cannot avoid his duty of registering an offence if a cognizable offence is disclosed.
Action must be taken against erring officers who do not register the FIR if information received by
him discloses a cognizable offence.
(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information
received but only to ascertain whether the information reveals any cognizable offence.
(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts
and circumstances of each case. The category of cases in which preliminary inquiry may be made
are as under:
(a) Matrimonial disputes/family disputes.
(b) Commercial offences.
(c) Medical negligence cases.
(d) Corruption cases.
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example,
over 3 months delay in reporting the matter without satisfactorily explaining the reasons for
delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant
preliminary inquiry.
(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry
should be made time bound and in any case it should not exceed 7 days. The fact of such delay
and the causes of it must be reflected in the General Diary entry.
(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a
police station, we direct that all information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the
said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned
above.
—————

Witness Protection Scheme, 2018

Mahender Chawla versus Union of India
[2018 SCC OnLine SC 2679: 2018 (15) SCALE 497: JT 2018 (12) SC 21: 2019 (1) KLT 277]
Dated: 05 December 2018
Bench: Justice AK Sikri and Justice Ashok Bhushan.
The Supreme Court directed the Union of India as well as States and Union Territories to enforce the
Witness Protection Scheme, 2018. The aim and object of the Scheme is to ensure that investigation,
prosecution and trial of criminal cases is not prejudiced because the witnesses are intimidated or
frightened to give evidence without protection from violent or other criminal recrimination.

Code of Criminal Procedure, 1973 131

 Categories of Witness as per Threat Perception
Category ‘A’: Where the threat extends to the life of a witness or his family members, during investigation/
trial or thereafter.
Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family
members, during the investigation/trial or thereafter.
Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness
or his family member’s, reputation or property, during the investigation/trial or thereafter.

State Witness Protection Fund

(a) There shall be a Fund, namely, the Witness Protection Fund from which the expenses incurred
during the implementation of Witness Protection Order passed by the Competent Authority and
other related expenditure, shall be met.
(b) The Witness Protection Fund shall comprise the following:—
(i) Budgetary allocation made in the Annual Budget by the State Government;
(ii) Receipt of amount of costs imposed/ordered to be deposited by the courts/tribunals in the
Witness Protection Fund;
(iii) Donations/contributions from Charitable Institutions/Organizations and individuals permitted
by Central/State Governments.
(iv) Funds contributed under Corporate Social Responsibility.
(c) The said Fund shall be operated by the Department/Ministry of Home under State/UT Government.
The Scheme approved by the Supreme Court of India in the aforesaid judgement reads as under:—
1. Short title and commencement.
2. Definitions.
3. Categories of witness as per threat perception.
4. State witness protection fund.
5. Filing of application before competent authority.
6. Procedure for processing the application.
7. Types of protection measures.
8. Monitoring and review.
9. Protection of identity.
10. Change of identity.
11. Relocation of witness.
12. Witnesses to be apprised of the scheme.
13. Confidentiality and preservation of records.
14. Recovery of expenses.
15. Review.
—————

132 Code of Criminal Procedure, 1973

 Death Penalty
Shatrughan Chauhan versus Union of India
[2014 (1) SCR 609: 2014 (1) SCALE 437: 2014 (3) SCC 1: 2014 Cri LJ 1327
Writ Petition (Criminal) No. 55 of 2013]
Dated: 21 January 2014
Bench: Chief Justice P Sathasivam, Justice Ranjan Gagoi and Shiv Kirti Singh.
Framed the following guidelines for safeguarding the interest of the death row convicts.
1. Solitary Confinement: This Court, in Sunil Batra (supra), held that solitary or single cell confinement
prior to rejection of the mercy petition by the President is unconstitutional. Almost all the prison
Manuals of the States provide necessary rules governing the confinement of death convicts. The
rules should not be interpreted to run counter to the above ruling and violate Article 21 of the
Constitution.
2. Legal Aid: There is no provision in any of the Prison Manuals for providing legal aid, for preparing
appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been
rejected. Various judgements of this Court have held that legal aid is a fundamental right under
Article 21. Since this Court has also held that Article 21 rights inhere in a convict till his last breath,
even after rejection of the mercy petition by the President, the convict can approach a writ court
for commutation of the death sentence on the ground of supervening events, if available, and
challenge the rejection of the mercy petition and legal aid should be provided to the convict at
all stages. Accordingly, Superintendent of Jails are directed to intimate the rejection of mercy
petitions to the nearest Legal Aid Centre apart from intimating the convicts.
3. Procedure in placing the mercy petition before the President: The Government of India has framed
certain guidelines for disposal of mercy petitions filed by the death convicts after disposal of their
appeal by the Supreme Court. As and when any such petition is received or communicated by the
State Government after the rejection by the Governor, necessary materials such as police records,
judgement of the trial court, the High Court and the Supreme Court and all other connected
documents should be called at once fixing a time limit for the authorities for forwarding the
same to the Ministry of Home Affairs. Even here, though there are instructions, we have come
across that in certain cases the Department calls for those records in piece-meal or one by
one and in the same way, the forwarding Departments are also not adhering to the procedure/
instructions by sending all the required materials at one stroke. This should be strictly followed
to minimise the delay. After getting all the details, it is for the Ministry of Home Affairs to send the
recommendation/their views to the President within a reasonable and rational time. Even after
sending the necessary particulars, if there is no response from the office of the President, it is the
responsibility of the Ministry of Home Affairs to send periodical reminders and to provide required
materials for early decision.
4. Communication of Rejection of Mercy Petition by the Governor: No prison manual has any provision
for informing the prisoner or his family of the rejection of the mercy petition by the Governor. Since
the convict has a constitutional right under Article 161 to make a mercy petition to the Governor,
he is entitled to be informed in writing of the decision on that mercy petition. The rejection of the
mercy petition by the Governor should forthwith be communicated to the convict and his family in
writing or through some other mode of communication available.

Code of Criminal Procedure, 1973 133

 5. Communication of Rejection of the Mercy Petition by the President: Many, but not all, prison
manuals have provision for informing the convict and his family members of the rejection of mercy
petition by the President. All States should inform the prisoner and their family members of the
rejection of the mercy petition by the President. Furthermore, even where prison manuals provide
for informing the prisoner of the rejection of the mercy petition, we have seen that this information
is always communicated orally, and never in writing. Since the convict has a constitutional right
under Article 72 to make a mercy petition to the President, he is entitled to be informed in writing
of the decision on that mercy petition. The rejection of the mercy petition by the President should
forthwith be communicated to the convict and his family in writing.
6. Death convicts are entitled as a right to receive a copy of the rejection of the mercy petition by the
President and the Governor.
7. Minimum 14 day notice for execution: Some prison manuals do not provide for any minimum
period between the rejection of the mercy petition being communicated to the prisoner and his
family and the scheduled date of execution. Some prison manuals have a minimum period of 1
day, others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be
stipulated between the receipt of communication of the rejection of the mercy petition and the
scheduled date of execution for the following reasons:—
(a) It allows the prisoner to prepare himself mentally for execution, to make his peace with God,
prepare his will and settle other earthly affairs.
(b) It allows the prisoner to have a last and final meeting with his family members. It also allows
the prisoners’ family members to make arrangements to travel to the prison which may be
located at a distant place and meet the prisoner for the last time. Without sufficient notice
of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be
thwarted and they will be prevented from having a last and final meeting with their families.
It is the obligation of the Superintendent of Jail to see that the family members of the convict
receive the message of communication of rejection of mercy petition in time.
8. Mental Health Evaluation: We have seen that in some cases, death-row prisoners lost their mental
balance on account of prolonged anxiety and suffering experienced on death row. There should,
therefore, be regular mental health evaluation of all death row convicts and appropriate medical
care should be given to those in need.
9. Physical and Mental Health Reports: All prison manuals give the Prison Superintendent the
discretion to stop an execution on account of the convict’s physical or mental ill health. It is,
therefore, necessary that after the mercy petition is rejected and the execution warrant is issued,
the Prison Superintendent should satisfy himself on the basis of medical reports by Government
doctors and psychiatrists that the prisoner is in a fit physical and mental condition to be executed.
If the Superintendent is of the opinion that the prisoner is not fit, he should forthwith stop the
execution, and produce the prisoner before a Medical Board for a comprehensive evaluation and
shall forward the report of the same to the State Government for further action.
10. Furnishing documents to the convict: Most of the death row prisoners are extremely poor and
do not have copies of their court papers, judgements, etc. These documents are required for
preparation of appeals, mercy petitions and accessing post-mercy judicial remedies which are
available to the prisoner under Article 21 of the Constitution. Since the availability of these
documents is a necessary prerequisite to the accessing of these rights, it is necessary that copies

134 Code of Criminal Procedure, 1973

 of relevant documents should be furnished to the prisoner within a week by the prison authorities
to assist in making mercy petitions and petitioning the courts.
11. Final Meeting between Prisoner and his Family: While some prison manuals provide for a final
meeting between a condemned prisoner and his family immediately prior to execution, many
manuals do not. Such a procedure is intrinsic to humanity and justice, and should be followed by
all prison authorities. It is therefore necessary for prison authorities to facilitate and allow a final
meeting between the prisoner and his family and friends prior to his execution.
12. Post Mortem Reports: Although, none of the Jail Manuals provide for compulsory post mortem
to be conducted on death convicts after the execution, we think in the light of the repeated
arguments by the petitioners herein asserting that there is dearth of experienced hangman in the
country, the same must be made obligatory.
—————

Inherent Powers of the High Court under Section 482 Cr.P.C.

Parbatbhai Aahir versus State of Gujarat
[2017 SCC OnLine SC 1189: AIR 2017 SC 4843: 2017 (9) SCC 641: 2017 (12) SCALE 187]
Dated: 04 October 2017
Bench: Justices Dipak Misra, AM Khanwilkar, Dr. DY Chandrachud.
The Supreme Court explained principles governing the inherent powers of the High Court under Section
482 Cr.P.C.. “Inherent power of the High Court has a wide ambit and plenitude it has to be exercised;
(i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court.”
I Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process
of any court or to secure the ends of justice. The provision does not confer new powers. It only
recognises and preserves powers which inhere in the High Court;
II. The invocation of the jurisdiction of the High Court to quash a First Information Report or a
criminal proceeding on the ground that a settlement has been arrived at between the offender
and the victim is not the same as the invocation of jurisdiction for the purpose of compounding
an offence. While compounding an offence, the power of the court is governed by the provisions
of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is
attracted even if the offence is non-compoundable.
III. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of
its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would
justify the exercise of the inherent power;
IV. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised:
(i) to secure the ends of justice or
(ii) to prevent an abuse of the process of any court;
V. The decision as to whether a complaint or First Information Report should be quashed on the
ground that the offender and victim have settled the dispute, revolves ultimately on the facts and
circumstances of each case and no exhaustive elaboration of principles can be formulated;
VI. In the exercise of the power under Section 482 and while dealing with a plea that the dispute
has been settled, the High Court must have due regard to the nature and gravity of the offence.
Heinous and serious offences involving mental depravity or offences such as murder, rape and
dacoity cannot appropriately be quashed though the victim or the family of the victim have settled

Code of Criminal Procedure, 1973 135

 the dispute. Such offences are, truly speaking, not private in nature but have a serious impact
upon society. The decision to continue with the trial in such cases is founded on the overriding
element of public interest in punishing persons for serious offences;
VII. As distinguished from serious offences, there may be criminal cases which have an overwhelming
or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise
of the inherent power to quash is concerned;
VIII. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or
similar transactions with an essentially civil flavour may in appropriate situations fall for quashing
where parties have settled the dispute;
IX. In such a case, the High Court may quash the criminal proceeding if in view of the compromise
between the disputants, the possibility of a conviction is remote and the continuation of a criminal
proceeding would cause oppression and prejudice; and
X. There is yet an exception to the principle set out in propositions (viii) and
XI. Economic offences involving the financial and economic well-being of the state have implications
which lie beyond the domain of a mere dispute between private disputants. The High Court would
be justified in declining to quash where the offender is involved in an activity akin to a financial or
economic fraud or misdemeanour. The consequences of the act complained of upon the financial
or economic system will weigh in the balance.
—————

Jurisdiction under Section 482 Cr.P.C.

Amit Kapoor versus Ramesh Chander
(2012) 9 SCC 460: 2012 (7) SCR 988: 2012 (9) SCALE 58: 2012 (7) SLT 154
Dated: 13 September 2012
Bench: Justices AK Patnaik and Swatanter Kumar
Scope of Jurisdiction under Section 397 and 482 of Criminal Procedure Code: Supreme Court discussed
“principles to be considered for proper exercise of jurisdiction,” particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as
the case may be:
(1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more
the power, the more due care and caution is to be exercised in invoking these powers. The power
of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the
Code should be exercised very sparingly and with circumspection and that too in the rarest of rare
cases.
(2) The Court should apply the test as to whether the uncontroverted allegations as made from the
record of the case and the documents submitted therewith prima facie establish the offence or
not. If the allegations are so patently absurd and inherently improbable that no prudent person
can ever reach such a conclusion and where the basic ingredients of a criminal offence are not
satisfied then the Court may interfere.
(3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed
for considering whether the case would end in conviction or not at the stage of framing of charge
or quashing of charge.

136 Code of Criminal Procedure, 1973

(4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice
and for correcting some grave error that might be committed by the subordinate courts even in
such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution
in exercise of its inherent powers.
(5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law
in force to the very initiation or institution and continuance of such criminal proceedings, such a
bar is intended to provide specific protection to an accused.
(6) The Court has a duty to balance the freedom of a person and the right of the complainant or
prosecution to investigate and prosecute the offender.
(7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior
purpose.
(8) Where the allegations made and as they appeared from the record and documents annexed
therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’
and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in
quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of
the evidence.
(9) Another very significant caution that the courts have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether there is sufficient material on the basis
of which the case would end in a conviction, the Court is concerned primarily with the allegations
taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process
of court leading to injustice.
(10) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate
evidence collected by the investigating agencies to find out whether it is a case of acquittal or
conviction.
(11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil
claim is maintainable, does not mean that a criminal complaint cannot be maintained.
(12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take
into consideration external materials given by an accused for reaching the conclusion that no
offence was disclosed or that there was possibility of his acquittal. The Court has to consider the
record and documents annexed by the prosecution.
(13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is
even broadly satisfied, the Court should be more inclined to permit continuation of prosecution
rather than its quashing at that initial stage. The Court is not expected to marshal the records with
a view to decide admissibility and reliability of the documents or records but is an opinion formed
prima facie.
(14) Where the charge-sheet, reported under Section 173(2) of the Code, suffers from fundamental
legal defects, the Court may be well within its jurisdiction to frame a charge.
(15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of
process of the Code or that interest of justice favours, otherwise it may quash the charge. The
power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration
of which alone, the courts exist.
—————

Code of Criminal Procedure, 1973 137

 Quashing of Criminal Proceedings on the Ground of Compromise between the Parties
State of Madhya Pradesh versus Laxmi Narayan
[2019 (4) SCALE 200: 2019 Cri LJ 1862: AIR 2019 SC 1296: 2019 (5) SCC 688
Criminal Appeal No. 349 of 2019 with Criminal Appeal No. 350 of 2019]
Dated: 05 March 2019
Bench: Justices AK Sikri, Abdul Nazeer, MR Shah.
“While exercising the power under Section 482 of the Code to quash the criminal proceedings in
respect of non-compoundable offences, which are private in nature and do not have a serious impact
on society, on the ground that there is a settlement/compromise between the victim and the offender,
the High Court is required to consider the antecedents of the accused; the conduct of the accused,
namely, whether the accused was absconding and why he was absconding, how he had managed with
the complainant to enter into a compromise etc.”
Supreme Court had issued the following Guidelines:
1. That the power conferred under Section 482 of the Code to quash the criminal proceedings
for the non-compoundable offences under Section 320 of the Code can be exercised having
overwhelmingly and predominantly the civil character, particularly those arising out of commercial
transactions or arising out of matrimonial relationship or family disputes and when the parties
have resolved the entire dispute amongst themselves;
2. Such power is not to be exercised in those prosecutions which involved heinous and serious
offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not
private in nature and have a serious impact on society;
3. Similarly, such power is not to be exercised for the offences under the special statutes like
Prevention of Corruption Act or the offences committed by public servants while working in that
capacity are not to be quashed merely on the basis of compromise between the victim and the
offender;
4. Offences under Section 307 I.P.C. and the Arms Act etc. would fall in the category of heinous and
serious offences and therefore are to be treated as crime against the society and not against the
individual alone, and therefore, the criminal proceedings for the offence under Section 307 I.P.C.
and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise
of powers under Section 482 of the Code, on the ground that the parties have resolved their entire
dispute amongst themselves. However, the High Court would not rest its decision merely because
there is a mention of Section 307 I.P.C. in the FIR or the charge is framed under this provision.
It would be open to the High Court to examine as to whether incorporation of Section 307 I.P.C.
is there for the sake of it for the prosecution has collected sufficient evidence, which if proved,
would lead to framing the charge under Section 307 I.P.C. For this purpose, it would be open to
the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/
delegate parts of the body, nature of weapons used etc. However, such an exercise by the High
Court would be permissible only after the evidence is collected after investigation and the charge
sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the
matter is still under investigation;
5. While exercising the power under Section 482 of the Code to quash the criminal proceedings in
respect of non-compoundable offences, which are private in nature and do not have a serious
impact on society, on the ground that there is a settlement/compromise between the victim and

138 Code of Criminal Procedure, 1973

 the offender, the High Court is required to consider the antecedents of the accused; the conduct
of the accused, namely, whether the accused was absconding and why he was absconding, how he
had managed with the complainant to enter into a compromise etc.
Relevant Cases: Narinder Singh versus State of Punjab, (2014) 6 SCC 466; State of Rajasthan versus
Shambhu Kewat, (2014) 4 SCC 149; Parbatbhai Aahir versus State of Gujarat, (2017) 9 SCC 641.
—————

Powers under Section 482

Narinder Singh versus State of Punjab
[2014 (4) SCALE 195: 2014 (6) SCC 466: 2014 Cri LJ 2436: 2014 (137) AIC 1
Criminal Appeal No. 686/2014, S.L.P (Criminal) No. 9547 of 2013]
Dated: 27 March 2014
Bench: Justices KS Radhakrishnan, AK Sikri.
“Offences under Section 307, I.P.C. fall in the category of heinous and serious crimes and are generally
treated as crimes against the society.” The Supreme Court observed that the High Court should examine
whether there is a strong possibility of conviction or not.
Certain principles were laid down by which the High Court would be guided in giving adequate treatment
to the settlement between the parties and exercising its power under Section 482 of the Code while
accepting the settlement and quashing the proceedings or refusing to accept the settlement with
direction to continue with the criminal proceedings:
I Power conferred under Section 482 of the Code is to be distinguished from the power which lies
in the Court to compound the offences under Section 320 of the Code. No doubt, under Section
482 of the Code, the High Court has inherent power to quash the criminal proceedings even in
those cases which are not compoundable, where the parties have settled the matter between
themselves. However, this power is to be exercised sparingly and with caution.
II. When the parties have reached the settlement and on that basis petition for quashing the criminal
proceedings is filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any Court.
While exercising the power the High Court is to form an opinion on either of the aforesaid two
objectives.
III. Such a power is not be exercised in those prosecutions which involve heinous and serious offences
of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in
nature and have a serious impact on society. Similarly, offences alleged to have been committed
under special statute like the Prevention of Corruption Act or the offences committed by Public
Servants while working in that capacity are not to be quashed merely on the basis of compromise
between the victim and the offender.
IV. On the other hand, those criminal cases having overwhelmingly and predominantly civil character,
particularly those arising out of commercial transactions or arising out of matrimonial relationship
or family disputes should be quashed when the parties have resolved their entire disputes among
themselves.

Code of Criminal Procedure, 1973 139

 V. While exercising its powers, the High Court is to examine as to whether the possibility of conviction
is remote and bleak and continuation of criminal cases would put the accused to great oppression
and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
VI. Offences under Section 307 I.P.C. would fall in the category of heinous and serious offences and
therefore is to be generally treated as crime against the society and not against the individual
alone. However, the High Court would not rest its decision merely because there is a mention of
Section 307 I.P.C. in the FIR or the charge is framed under this provision. It would be open to the
High Court to examine as to whether incorporation of Section 307 I.P.C. is there for the sake of
it for the prosecution has collected sufficient evidence, which if proved, would lead to proving
the charge under Section 307 I.P.C. For this purpose, it would be open to the High Court to go by
the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the
body, nature of weapons used etc. Medical reports in respect of injuries suffered by the victim
can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can
examine as to whether there is a strong possibility of conviction or the chances of conviction
are remote and bleak. In the former case it can refuse to accept the settlement and quash the
criminal proceedings whereas in the later case it would be permissible for the High Court to accept
the plea compounding the offence based on complete settlement between the parties. At this
stage, the Court can also be swayed by the fact that the settlement between the parties is going
to result in harmony between them which may improve their future relationship.
VII. While deciding whether to exercise its power under Section 482 of the Code or not, timings of
settlement play a crucial role. Those cases where the settlement is arrived at immediately after the
alleged commission of offence and the matter is still under investigation, the High Court may be
liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because
of the reason that at this stage the investigation is still on and even the charge sheet has not been
filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the
evidence is still at infancy stage, the High Court can show benevolence in exercising its powers
favourably, but after prima facie assessment of the circumstances/material mentioned above. On
the other hand, where the prosecution evidence is almost complete or after the conclusion of
the evidence the matter is at the stage of argument, normally the High Court should refrain from
exercising its power under Section 482 of the Code, as in such cases the trial court would be in a
position to decide the case finally on merits and to come a conclusion as to whether the offence
under Section 307 I.P.C. is committed or not. Similarly, in those cases where the conviction is
already recorded by the trial court and the matter is at the appellate stage before the High Court,
mere compromise between the parties would not be a ground to accept the same resulting in
acquittal of the offender who has already been convicted by the trial court. Here charge is proved
under Section 307 I.P.C. and conviction is already recorded of a heinous crime and, therefore, there
is no question of sparing a convict found guilty of such a crime.
—————

Legal Maxims
y “De novo trial” means a new trial by a different tribunal or new beginning.
y “Prima facie” means sufficient to establish a fact or raise a presumption unless disproved or rebutted
or accepted as correct until proved otherwise.
y “Habeas Corpus” means “may you have the body” or “you have the body”.

140 Code of Criminal Procedure, 1973

Words and Phrases: Legally Defined

Accused if in Custody
The Word “accused if in custody” appearing in Section 309(2) refer and relates to an accused who
was before the Court when cognizance was taken or when enquiry or trial was being held in respect of
him and not to an accused who is subsequently arrested in course of further investigation. So far as
the accused in the first category is concerned, he can be remanded to judicial custody only in Section
309(2), but whoever comes under the second category will be governed under Section 167 so long as
further investigation continues. That necessarily means that in respect of the latter the Court which
had taken cognizance of the offence may exercise its power to detain him in police custody, subject to
the fulfilment of the requirements and the limitation of Section 167.
The Supreme Court finds, investigating agencies would be deprived of an opportunity to interrogate a
person arrested during post cognizance stage, if further investigation is taken up and a scope must be
made available. “Accused if in custody” appearing in Section 309(2) only means judicial custody. But for
an accused arrested during post cognizance a liberty was given to the police for further investigation
under Section 167, Cr.P.C. by entrusting him with police custody. Police custody is not contemplated
during the post cognizance stage. In view of the interpretation given by the Supreme Court, police
custody is permitted to interrogate a person arrested latter; CBI versus Dawood Ibrahim Kaskar, 1997
SCC Crl. 636: 1997 Cri LJ 2989: 2000 (1) SCC 438 also see, Central Bureau of Investigation versus Dinesh
Dalmia, 2006 Cri LJ 2401.

Appeal
Section 438 of the Code makes special provision for granting ‘anticipatory bail’ which was introduced
in the present Code of 1973. The expression (‘anticipatory bail’) has not been defined in the Code.
Anticipatory bail means a bail in anticipation of arrest. The expression ‘anticipatory bail’ is a misnomer
inasmuch as it is not as if bail is presently granted in anticipation of arrest. Where a competent court
grants ‘anticipatory bail’, it makes an order that in the event of arrest, a person shall be released on
bail. There is no question of release on bail unless a person is arrested and, therefore, it is only on
arrest that the order granting anticipatory bail becomes operative; Balchand Jain versus State of MP,
(1976) 4 SCC 572 also see Union of India versus Padam Narain Aggarwal, Criminal Appeal No. 1575 of
2008, SLP (Crl) No. 2075 of 2007, AIR 2009 SC 254.
It was also observed that the power of granting ‘anticipatory bail’ is extraordinary in character and only
in exceptional cases where it appears that a person is falsely implicated or a frivolous case is launched
against him or “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” that such power may be exercised.
Thus, the power is ‘unusual in nature’ and is entrusted only to the higher echelons of judicial service,
i.e., a Court of Session and a High Court; Balchand Jain versus State of MP, (1976) 4 SCC 572 also see
Union of India versus Padam Narain Aggarwal, Criminal Appeal No. 1575 of 2008, SLP (Crl) No. 2075 of
2007, AIR 2009 SC 254.

Arrest
The Term ‘arrest’ is not defined either in the procedural Acts or in the various substantive Acts, though
Section 46, Cr.P.C., lays down the mode of arrest to be effected.

Code of Criminal Procedure, 1973 141

 The word ‘arrest’ is derived from the French ‘Arreter’ meaning ‘to stop or stay’ and signifies a restraint
of the person. Lexicographically the meaning of the word ‘arrest’ is given in various dictionaries as
follows:
(a) In the Shorter Oxford English Dictionary, the various meanings of the word used under various
contexts are given. Those which are relevant for our purpose read thus:
“As verb: gen. to catch, lay hold upon; Esp. to lay hold upon or apprehend by legal authority.
As a noun: The act of laying hold of; seizure. 4. Spec. The apprehending of one’s person in order to
be forthcoming to answer an alleged or suspected crime Custody, imprisonment.
(b) The ‘Webster’s Third New International Dictionary, Vol. I, at page 121, gives the meaning thus:
Arrest - to catch or to take hold of; seize, capture. Specify: to take or keep in custody by authority
of law. 3. a: to catch and hold...................... 2 - arrest........... 2. a: the act of seizing or taking hold of;
seizure......; the taking or detaining of a person in custody by authority of law; legal restraint of a
person; custody, imprisonment.............”.
(c) Stroud’s Judicial Dictionary, IV Edition, Volume I, at page 184, defines the word as follows:
“‘arrest’, is when one is taken and restrained from his liberty.”
(d) In the Bouvier’s Law Dictionary, 1914 Edition, Vol. I, the meaning is given thus:
Arrest: to deprive a person of his liberty by legal authority. The taking, seizing or detaining the
person of another, touching or putting hands upon him in the execution of process, or any act
indicating an intention to arrest.
(e) In the Dictionary of English Law (1959) by Earl Jowitt, Vol. I, the meaning of the word is given at
page 152 as follows:
“The restraining of the liberty of a man’s person in order to compel obedience to the order of a
Court of Justice, or to prevent the commission of a crime, or to ensure that a person charged or
suspected of a crime may be forthcoming to answer it. To arrest a person is to restrain him of his
liberty by some lawful authority.
(f) The Wharton’s Law Lexicon, 12th Edition (1916) has defined the word ‘arrest’ in the above lines.
(g) Black’s Law Dictionary, 5th Edition (1979), gives the following definitions:
“Arrest: To deprive a person of his liberty by legal authority. Taking, under real or assumed authority,
custody of another for the purpose of holding or detaining him to answer a criminal charge or civil
demand. Arrest involves the authority to arrest, the assertion of that authority with the intent to
effect an arrest, and the restraint of the person to be arrested. All that is required for an ‘arrest’
is some act by the officer indicating his intention to detain or take the person into custody and
thereby subject that person to the actual control and will of the officer, as formal declaration of
arrest is required.
(h) ‘A Dictionary of Law’ by L.B. Curzon (1979) gives the meaning of the word ‘arrest’ at page 22, as
follows:
“To restrain and detain a person by lawful authority..........”.
(i) Mitra’s Legal and Commercial Dictionary, Third Edition (1979), gives the following definition of the
word at page 77:
“Arrest means the restraining of the liberty of a man’s person in order to compel obedience to
the order of a Court of Justice, or to prevent the commission of crime, or to ensure that a person
charged or suspected of a crime may be forthcoming to answer it.”

142 Code of Criminal Procedure, 1973

 Arrest consists of the actual seizure or touching of a person’s body with a view to his detention.
The mere pronouncement of words of arrest is not an arrest, unless the person sought to be
arrested submits to the process and goes with the arresting officer. An arrest may be made either
with or without warrant.
(j) Words and Phrases legally defined, Second Edition (1969), Volume 1, at p. 114, gives the following
definition:
“Arrest consists of the actual seizure or touching of the person’s body with a view to his detention.
The mere pronouncement of words of arrest is not an arrest, unless the person sought to be
arrested submits to the process and goes with the arresting officer. Arrest is the apprehending
or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected
crime............”.
(k) The New Encyclopedia Britannica, 15th Edition, Vol. 1, at page 540, states as follows about arrest:
Arrest, placing of a person in custody or under restraint, usually for the purpose of compelling
obedience to the law. If the arrest occurs in the course of criminal procedure, the purpose of the
restraint is to hold the person to answer to a criminal charge or to prevent him from committing
an offence. In civil proceedings, the purpose is to hold the person to a demand made against him.
(l) Halsbury’s Laws of England, Third Edition (1955), Vol. 10, at page 342, states as follows:
Meaning of Arrest: Arrest consists of the actual seizure or touching of a person’s body with a view
to his detention.
The mere pronouncement of words of arrest is not an arrest, unless the person sought to be
arrested submits to the process and goes with the arresting person.”
(m) Halsbury’s Laws of England, IV Edition, Vol. II, in para 99 at page 75, states thus:
“Meaning of arrest: Arrest consists in the seizure or touching of a person’s body with a view to
his restraint; words may, however, amount to an arrest if, in the circumstances of the case, they
are calculated to bring and do bring, to a person’s notice that he is under compulsion and he
thereafter submits to the compulsion.
(In the footnote, the following example is given for the second view mentioned above: Where a
person is caught red-handed. (R versus Howarth, (1828) 1 Mood CC 207). Also Gelberg versus Miller,
(1961) 1 All ER 291.
(n) The Corpus Juris Secundum, Vol. VI, at page 570, gives the meaning of the word ‘arrest’ when used
in criminal charges, as follows:
“In criminal procedure, an arrest is the taking of a person into custody in order that he may be
held to answer for or be prevented from committing a criminal offence consists in the taking into
custody of another person under real or assumed authority for the purpose of holding or detaining
him to answer a criminal charge or of preventing the commission of a criminal offence. The terms
‘arrest’ and ‘apprehension’ have been used by some Courts interchangeably as meaning the same
thing when employed in connection with the taking of a person into custody. The effect of facts
as constituting an arrest is a question of law. Whether the particular circumstances have been
established which constitute an arrest is ordinarily, however, a question of fact.”
According to this textbook, “to constitute an arrest, there must be an intent to arrest, under a
real or pretended authority, accompanied by a seizure or detention of the person, which is so
understood by the person arrested”.

Code of Criminal Procedure, 1973 143

 (o) In “A Hand-Book in Criminal Procedure and the Administration of Justice” by Alien P. Bristow and
John B. Williams, at 834 P.C., it is stated that an arrest is taking a person into custody in a case
and in the manner authorised by law. At 835 P.C., it is stated that an arrest is made by an actual
restraint of the person or by submission to the custody of an officer.
(p) In another text-book “The Criminal Prosecution in England” by Patrick Devlin, at page 68, the
author has expressed his view as follows:
The police have no power to detain anyone unless they charge him with a specified crime and
arrest him accordingly. Arrest and imprisonment are in law the same thing. Any form of physical
restraint is an arrest and imprisonment is only a continuing arrest. If an arrest is unjustified, it is
wrongful in law and is known as false imprisonment.
(q) Winn, L.J., in R versus Palfrey; R versus Sadler, (1970) 2 All ER 12), when delivering the judgement
of the Court of which Lord Parker, C.J., was a member, said, in explaining the term ‘arrest’.
It is not a question whether or not certain conditions precedent have been satisfied. The question
is merely whether or not he is a person who is under arrest; whether he is under arrest or not
depends on whether he is free to go as he pleases, or has been told that he is in a state of custody.
(r) In Spicer versus Holt, (1976) 3 All ER 71), Viscount Dilhorne, following the above view of Winn, L.J.,
has observed thus:
Arrest’ is an ordinary English word and its natural meaning is that given to it by Winn, L.J., which
I have cited. Whether or not a person has been arrested depends not on the legality of the arrest,
but on whether he has been deprived of his liberty to go where he pleases; Roshan Beevi versus
Joint Secretary to Government, 1984 (15) ELT 289 (Mad).

Assist
“Assist” is defined in Black Dictionary as follows: Assist- To help; aid; succour; lend countenance or
encouragement to; participate in as an auxiliary. To contribute effort in the complete accomplishment
of an ultimate purpose intended to be affected by those engaged; Sathyavani Ponrani versus Samuel
Raj, Crl. O.P. (MD) No. 5474 of 2010.

Assistance of counsel
The Black Dictionary defines the “Assistance of counsel” as under: “Representation by a lawyer, esp. in
a criminal case”; Sathyavani Ponrani versus Samuel Raj, Crl. O.P. (MD) No. 5474 of 2010.

Charge-sheet or Final report

The expressions ‘charge-sheet’ or ‘final report’ are not used in the Code, but it is understood in Police
Manuals of several States containing the Rules and the Regulations to be a report by the police filed
under Section 170 of the Code, described as a “charge-sheet”. In case of reports sent under Section
169, i.e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is
termed variously i.e., referred charge, final report or summary. Section 173 in terms does not refer to
any notice to be given to raise any protest to the report submitted by the police. Though the notice
issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, though
there is nothing in Section 173 specifically providing for such a notice; Minu Kumari versus The State of
Bihar, (2006) 2 SCC (Cri) 310: 2006 Cri LR (SC) 496.

144 Code of Criminal Procedure, 1973

Continuing Offence
Section 472 Cr.P.C. provides that in case of a continuing offence, a fresh period of limitation begins to
run at every moment of the time period during which the offence continues. The expression, ‘continuing
offence’ has not been defined in the Cr.P.C. because it is one of those expressions which does not have
a fixed connotation, and therefore, the formula of universal application cannot be formulated in this
respect.
“According to the Black’s Law Dictionary, Fifth Edition, ‘Continuing’ means ‘enduring; not terminated by
a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar
obligations or occurrences.’ Continuing offence means ‘type of crime which is committed over a span
of time.’ As to the period of statute of limitation in a continuing offence, the last act of the offence
controls for commencement of the period. ‘A continuing offence, such that only the last act thereof
within the period of the statute of limitations need be alleged in the indictment or information, is one
which may consist of separate acts or a course of conduct but which arises from that singleness of
thought, purpose or action which may be deemed a single impulse.’ So also a ‘Continuous Crime’ means
“one consisting of a continuous series of acts, which endures after the period of consummation, as, the
offence of carrying concealed weapons. In the case of instantaneous crimes, the statute of limitation
begins to run with the consummation, while in the case of continuous crimes it only begins with the
cessation of the criminal conduct or act”; Gokak Patel Volkart Ltd versus Dundayya Gurushiddaiah
Hiremath, (1991) 2 SCC 141 also see Udai Shankar Awasthi versus State of UP, 2013 (2) SCC 435.
A continuing offence is one which is susceptible of continuance and is distinguishable from the one
which is committed once and for all. It is one of those offences which arise out of a failure to obey or
comply with a rule or its requirement and which involves a penalty, the liability for which continues
until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience
or non-compliance occurs and recurs, there is the offence committed. The distinction between the
two kinds of offences is between an act or omission which constitutes an offence once and for all and
an act or omission which continues and therefore constitutes a fresh offence every time or occasion
on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance
of the offence which is absent in the case of an offence which takes place when an act or omission
is committed once and for all; State of Bihar versus Deokaran Nenshi, AIR 1973 SC 908 also see Udai
Shankar Awasthi versus State of UP, 2013 (2) SCC 435.
A continuing offence is an act which creates a continuing source of injury, and renders the doer of
the act responsible and liable for the continuation of the said injury. In case a wrongful act causes
an injury which is complete, there is no continuing wrong even though the damage resulting from
the said act may continue. If the wrongful act is of such character that the injury caused by it itself
continues, then the said act constitutes a continuing wrong. The distinction between the two wrongs
therefore depends, upon the effect of the injury; Balakrishna Savalram Pujari Waghmare versus Shree
Dnyaneshwar Maharaj Sansthan, AIR 1959 SC 798 also see Udai Shankar Awasthi versus State of UP,
2013 (2) SCC 435.
Continuing offence is one which is susceptible of continuance and is distinguishable from the one
which is committed once and for all. It is one of those offences which arise out of a failure to obey or
comply with a rule or its requirement and which involves a penalty, the liability for which continues
until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience
or non-compliance occurs and recurs, there is the offence committed. The distinction between the
two kinds of offences is between an act or omission which constitutes an offence once and for all and
an act or omission which continues and therefore constitutes a fresh offence every time or occasion

Code of Criminal Procedure, 1973 145

 on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance
of the offence which is absent in the case of an offence which takes place when an act or omission is
committed once and for all; State of Bihar versus Deokaran Nenshi, AIR 1973 SC 908: 1973 (3) SCR 1004.

Custody
(a) The Term ‘custody’ appears in a number of enactments. However, we are not giving an exhaustive
list of the provisions of enactments containing the said expression ‘custody’. In Sections 439, 442
(heading alone of the Section) and Section 451 of the Criminal Procedure Code, Section 223 of the
Indian Penal Code, Sections 26 and 27 of the Indian Evidence Act, Section 45 of the Customs Act,
1962 and Sections 19(c), 25(b) and (c), 29(2) and (3) and 40 of the Tamil Nadu Children Act, etc.,
the said term is used. However, it may be noted that the said word is not defined in any of these
enactments.
(b) The meaning of the term ‘custody’ is given in the Shorter Oxford English Dictionary, as follows:
“1. Safe-keeping, protection, charge, care, guardianship.
2. The keeping of an officer of justice, confinement, imprisonment, and endurance.
3. Guardianship”
(c) In Webster’s Third International Dictionary, Vol. I, at page 559, the word ‘custody’ is given the
following meanings:
1. (a) The act or duty of guarding and preserving, safe-keeping, b. Judicial or penal safe-keeping,
control of a thing or person with such actual or constructive possession as fulfils the purpose
of the law or duty requiring it; imprisonment or durance of persons or charge of things.”........
The term ‘custody’ implies and signifies various meanings dependent upon the context in
which the term is used.”
(d) The Corpus Juris Secundum, Vol. 25, at page 69 when it is applied to persons, it implies
restraint and may or may not imply physical force sufficient to restrain depending on the
circumstances and with reference to persons charged with crime, it has been defined as
meaning on actual confinement or the present means of enforcing it, the detention of the
person contrary to his will. Applied to things, it means to have a charge or safe-keeping, and
connotes control and includes as well, although it does not require, the element of physical
or manual possession, implying a temporary physical control merely and responsibility for
the protection and preservation of the thing in custody. So used, the word does not connote
dominion or supremacy of authority. The said term has been defined as meaning the keeping,
guarding, care, watch, inspection, preservation or security of a thing, and carries with it the
idea of the thing being within the immediate personal care and control of the prisoner to whose
custody it is subjected; charge; charge to keep, subject to order or direction; immediate charge
and control and not the final absolute control of ownership.
Therefore, it is clear that we have to take the meaning of the term ‘custody’ with reference to the
context in which it is used.
Black’s Law Dictionary also defines ‘Custody’ as the care and control of a thing or person. The keeping,
guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the
thing being within the immediate personal care and control of the person to whose custody it is
subjected Immediate charge and control, and not the final, absolute control of ownership, implying
responsibility for the protection and preservation of the thing in custody; Roxann Sharma versus Arun
Sharma, 2015 (8) SCC 318.

146 Code of Criminal Procedure, 1973

In Black’s Law Dictionary by Henry Campbell Black, M.A. (Sixth Edn.), the expression “custody” has
been explained in the following manner:
The term is very elastic and may mean actual imprisonment or physical detention within statute requiring
that petitioner be ‘in custody’ to be entitled to federal habeas corpus relief does not necessarily mean
actual physical detention in jail or prison but rather is synonymous with restraint of liberty.
In Black’s Law Dictionary the said expression has been explained as follows: Move: to make an
application to a Court for a rule or order, or to take action in any matter. The term comprehends all
things necessary to be done by a litigant to obtain an order of the Court directing the relief sought;
Sunita Devi versus State of Bihar, 2004 Supp (6) SCR 707.
The terms ‘custody’, ‘detention’ or ‘arrest’ have not been defined in the CrPC, and we must resort to
few dictionaries to appreciate their contours in ordinary and legal parlance.
The Oxford Dictionary (online) defines custody as imprisonment, detention, confinement, incarceration,
internment, captivity; remand, duress, and durance. The Cambridge Dictionary (online) explains
‘custody’ as the state of being kept in prison, especially while waiting to go to court for trial.
Longman Dictionary (online) defines ‘custody’ as ‘when someone is kept in prison until they go to court,
because the police think they have committed a crime’.
Chambers Dictionary (online) clarifies that custody is ‘the condition of being held by the police; arrest
or imprisonment; to take someone into custody to arrest them’. Chambers’ Thesaurus supplies several
synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration.
The Collins Cobuild English Dictionary for Advanced Learners states in terms of that someone who is
in custody or has been taken into custody or has been arrested and is being kept in prison until they
get tried in a court or if someone is being held in a particular type of custody, they are being kept in a
place that is similar to a prison.
The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance
and this feature is totally absent in the factual matrix before us.
The Corpus Juris Secundum under the topic of ‘Escape & Related Offences; Rescue’ adumbrated that
‘Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of
a person against his or her will, or of the exercise of control over another to confine the other person
within certain physical limits or a restriction of ability or freedom of movement.’
This is how ‘Custody’ is dealt with in Black’s Law Dictionary, (9th Ed. 2009): “Custody- The care and
control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of
a thing, carrying with it the idea of the thing being within the immediate personal care and control of
the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute
control of ownership, implying responsibility for the protection and preservation of the thing in custody.
Also the detainer of a man’s person by virtue of lawful process or authority.
The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal
or physical, of imprisoning or of taking manual possession. Term “custody” within statute requiring that
petitioner be “in custody” to be entitled to federal habeas corpus relief does not necessarily mean
actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U.S. ex rel.
Wirtz versus Sheehan, D.C. Wis, 319 F. Supp. 146, 147. Accordingly, persons on probation or released on
their own recognizance have been held to be “in custody” for purposes of habeas corpus proceedings”;
Sundeep Kumar Bafna versus State of Maharashtra, 2014 AIOL 181: 2014 (2) Crimes 161 (SC).

Code of Criminal Procedure, 1973 147

 Diary
The expression ‘diary’ referred to in Section 167(1) of the Code is the special diary mentioned in Section
167(2) which should contain full and unabridged statements of persons examined by the police so as to
give the Magistrates on a perusal of the said diary, a satisfactory and complete source of information
which would enable him to decide whether or not the accused person should be detained in custody
but it is different from the general diary maintained under Section 44 of the Police Act; Directorate of
Enforcement versus Deepak Mahajan, AIR 1994 SC 1775: 1994 (1) SCR 445.

Engage
The word “engage” has been defined in Black Dictionary as follows: “to employ or involve oneself; to
take part in; to embark on” From the above definitions it is seen that the definition of word “engage”
would mean to make oneself involved in a particular activity and to take part. Therefore the word
“engage” has got a wider import than the word instruct; Sathyavani Ponrani versus Samuel Raj, Crl. O.P.
(MD) No. 5474 of 2010.

Further investigation
‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence
after the final report has been filed before the Court in terms of Section 173(8). This power is vested
with the Executive. It is the continuation of a previous investigation and, therefore, is understood
and described as a ‘further investigation’. Scope of such investigation is restricted to the discovery of
further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if
they are discovered at a subsequent stage to the primary investigation. It is commonly described as
a ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent
investigation is meant and intended to supplement the primary investigation conducted by the
empowered police officer. Another significant feature of further investigation is that it does not have the
effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency.
This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and
in continuation of the same offence and chain of events relating to the same occurrence incidental
thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’,
‘fresh’ or ‘de novo’ investigation.
‘Fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ - In the case of a ‘fresh investigation’,
‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the court. The order of
the Court unambiguously should state as to whether the previous investigation, for reasons to be
recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has
any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be
opposed to the scheme of the Code. It is essential that even an order of ‘fresh’/’de novo’ investigation
passed by the higher judiciary should always be coupled with a specific direction as to the fate of
the investigation already conducted. The cases where such direction can be issued are few and far
between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is
the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows
from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where
the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set
aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another
independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore,
has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases.

148 Code of Criminal Procedure, 1973

Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the
Court should be reluctant to interfere in such matters to the extent of quashing an investigation and
directing a ‘fresh investigation’; Vinay Tyagi versus Irshad Ali @ Deepak, 2013 (5) SCC 762.

Legal Proceedings
‘Legal proceedings’ means proceedings regulated or prescribed by law in which a judicial decision may
be given; it means proceedings in a court of justice by which a party pursues a remedy which a law
provides, but does not include administrative and departmental proceedings.
“Any proceedings in court of justice by which property of the debtor is seized and diverted from his
general creditors.. This term includes all proceedings authorised or sanctioned by law, and brought
or instituted in a court of justice or legal tribunal, for the acquiring of a right or the enforcement of a
remedy.” The Court came to the conclusion that proceedings before statutory authorities under the
provisions of the Act do not amount to legal proceedings; General Officer Commanding versus CBI,
Criminal Appeal No. 257 of 2011, 55 of 2006.

Mother and step-mother

The expressions “mother” and “step-mother” have not been defined either in the Code or in the General
Clauses Act. These expressions have also not been defined by the Hindu Law or the Hindu Adoptions
and Maintenance Act, 1956 or by any other Law. As stated earlier all that the explanation attached to
Section 20 of the Hindu Adoptions and Maintenance Act, 1956 provides is that the Expression “parent”
includes a childless step-mother. His being the position, we have to resort to the dictionary meaning
and the meaning in which these expressions are commonly understood in the popular sense.
In the Permanent Edition or Words and Phrases, Volume 27A, at page 348, the word “mother” has been
given the meaning to denote a woman who has borne a child or a female parent, especially one of the
human race.
In Volume 40 of the said Permanent Edition of Words and Phrase at page 145 the expression “step-
mother” has been given the meaning as to be the wife of one’s father by virtue of marriage subsequent
to that of which the person spoken of is the offspring. It has been further stated that a “stem-mother”
is a relative by affinity and the relationship continues after the death of the father.
Black’s Law Dictionary, 5th Edition, at page 913, has given the meaning of “mother” as a woman who
has borne a child, a female parent. Further, at page 1268, the meaning of “step-mother” is stated to
mean the wife of one’s father by virtue of a marriage subsequent to that of which the person spoken
of is the offspring.
Similarly, in the Shorter Oxford English Dictionary, Volume II, at page 1360, the meaning of the word
“mother” is given as a woman who has given birth to a child or a female parent, and at page 12122,
expression “stem-mother” has been assigned the meaning as the wife of one’s father by a subsequent
marriage.
According to Webster’s Dictionary (International Edition), the expression “mother” means a female
parent and that which was produced or given birth to anyone. Thus on a conspectus view of dictionary
meaning of the two expressions - “mother” and “step-mother” in various dictionaries, it clearly emerges
that there is inherent distinction between the status of a mother and ‘step-mother’ and they are two
distinct and separate entities and both could not be assigned the same meaning. The expression
“mother” clearly means only the natural mother who has given birth to the child and not the one who
is the wife of one’s father by another marriage; Kirtikant D Vadodaria versus State of Gujarat, (1996) 4
SCC 479.

Code of Criminal Procedure, 1973 149

 Otherwise dealt with
From the words “otherwise dealt with” it does not necessarily mean something which is not included in
the investigation, inquiry or trial and the word “otherwise” points to the fact that the expression “dealt
with” is all comprehensive and that investigation, inquiry and trial are some of the aspects dealing with
the offence; State of Punjab versus Balbir Singh, AIR 1994 SC 1872: 1994 (3) SCC 299.

Parole
Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite
granting parole under the Statute, Rules, Jail Manual or the Government orders. “Parole” means the
release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise
of good behaviour and return to jail. It is a release from jail, prison or other internment after actually
being in jail serving part of a sentence.
‘Parole’, however, has a different connotation than bail even though the substantial legal effect of both
bail and parole may be the release of a person from detention or custody. The dictionary meaning of
“parole” is: The Concise Oxford Dictionary - (New Edition) “The release of a prisoner temporarily for a
special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such
a promise; a word of honour”.
Black’s Law Dictionary – (6th Edition) “Release from jail, prison or other confinement after actually
serving part of sentence. Conditional release from imprisonment which entitles parolee to serve
remainder of his term outside confides of an institution, if he satisfactorily complies with all terms
and conditions provided in parole order.”
According to the Law Lexicon, “Parole” has been defined as: “A parole is a form of conditional pardon,
by which the convict is released before the expiration of his term, to remain subject, during the
remainder thereof, to supervision by the public authority and to return to imprisonment on violation
of the condition of the parole.”
According to Words and Phrases: Parole ameliorates punishment by permitting convict to serve
sentence outside of prison walls, but parole does not interrupt sentence; People ex rel Rainone versus
Murphy, 135 NE 2d 567, 571: 1 NY 2d 367: 153 NYS 2d 21, 26.
‘Parole does not vacate sentence imposed, but is merely a conditional suspension of sentence; Wooden
versus Goheen [Ky 255 SW 2d 1000, 1002].
A ‘parole’ is not a ‘suspension of sentence’, but is a substitution, during continuance of parole, of lower
grade of punishment by confinement in legal custody and under control of warden within specified
prison bounds outside the prison, for confinement within the prison adjudged by the court; Jenkins
versus Madigan. [CA Ind, 211 F 2d 904, 906]
A ‘parole’ does not suspend or curtail the sentence originally imposed by the court as contrasted with
a ‘commutation of sentence’ which actually modifies it”; Dadu @ Tulsidas versus State of Maharashtra,
2001 (5) Bom CR 264: 2002 Cri LJ 3850.
Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence
and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of
bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted
of an offence after trial. The effect of granting bail is to release the accused from internment though
the court would still retain constructive control over him through the sureties. In case the accused is
released on his own bond such constructive control could still be exercised through the conditions of
the bond secured from him. The literal meaning of the word ‘Bail’ is surety.

150 Code of Criminal Procedure, 1973

In Halsbury’s Law of England 4th Ed., Vol. 11, para 166, the following observation succinctly brings out
the effect of bail: “The effect of granting bail is not to set the defendant (accused) at liberty but to
release him from the custody of law and to entrust him to the custody of his sureties who are bound to
produce him to appear at his trial at a specified time and place. The sureties may seize their principal
at any time and may discharge themselves by handing him over to the custody of law and he will then
be imprisoned.”
‘Parole’, however, has a different connotation than bail even though the substantial legal effect of both
bail and parole may be the release of a person from detention or custody. The dictionary meaning of
‘Parole’ is:
The Concise Oxford Dictionary - New Edition “The release of a prisoner temporarily for a special
purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a
promise, a word of honour.”
Black’s Law Dictionary - Sixth Edition “Release from Jail, prison or other confinement after actually
serving part of sentence; conditional release from imprisonment which entitles parolee to serve
remainder of his term outside confines of an institution, if he satisfactorily complies with all terms
and conditions provided in parole order.”
According to The Law Lexicon P. Ramanatha Aiyar’s The Law Lexicon with Legal Maxims, Latin Terms
and Words & Phrases; p. 1410, ‘parole’ has been defined as: “A parole is a form of conditional pardon,
by which the convict is released before the expiration of his term, to remain subject, during the
remainder thereof, to supervision by the public authority and to return to imprisonment on violation
of the condition of the parole.”
According to Words and Phrases (Permanent Edition) Vol. 31; pp. 164, 166, 167; West Publishing Co.:
Parole ameliorates punishment by permitting convict to serve sentence outside of prison walls, but
parole does not interrupt sentence; People ex rel. Rainone versus Murphy, 135 NE 2d 567: 1 NY 2d 367:
153 NYS 2d 21.
‘Parole’ does not vacate a sentence imposed, but is merely a conditional suspension of sentence;
Wooden versus Goheen, Ky 255 SW 2d 1000).
“A ‘parole’ is not a ‘suspension of sentence’, but is a substitution, during continuance of parole, of lower
grade of punishment by confinement in legal custody and under control of warden within specified
prison bounds outside the prison, for confinement within the prison adjudged by the court; Jenkins
versus Madigan, CA Ind., 211 F. 2d 904.
A ‘parole’ does not suspend or curtail the sentence originally imposed by the court as contrasted with a
‘commutation of sentence’ which actually modifies it; Sunil Fulchand Shah versus Union of India, 2000
(1) SCR 945.

Police custody
The Custody of police for investigation purposes cannot be treated for judicial custody/detention in
another case. The police custody here means the Police custody in a particular case for investigation
and not judicial custody in another case. This notional surrender cannot be treated as Police custody
so as to count 90 days from that notional surrender. A notorious criminal may have a number of cases
pending in various police stations in city or outside city, a notional surrender in pending case for another
FIR outside city or of another police-station in same city, if the notional surrender is counted then
the police will not get the opportunity to get custodial investigation. The period of detention before a
Magistrate can be treated as a device to avoid physical custody of the police and claim the benefit of

Code of Criminal Procedure, 1973 151

 proviso to sub-section 1 and can be released on bail. This kind of device cannot be permitted under
Section 167 of the Cr.P.C. The condition is that the accused must be in the custody of the police and
so called deemed surrender in another criminal case cannot be taken as starting point for counting
15 days police remand or 90 days or 60 days as the case may be; State of West Bengal versus Dinesh
Dalmia, Appeal Crl. 623 of 2007: SLP (Crl.) No. 5124/06.
Save as otherwise provided
Section 378, sub-section (1), opens with the words - “save as otherwise provided in sub-section (2)”.
These words are not without significance. The immediate question is as to what meaning should be
ascribed to these words. In the Concise Oxford English Dictionary (Tenth Edition, Revised), the word
“save” is defined thus: “save. - formal or poetic/literary except; other than....”.
In Webster’s Comprehensive Dictionary (International Edition), the word “save” is defined as follows:
“save. - Except; but - 1. Except; but 2. Archaic Unless”.
A Dictionary of Modern Legal Usage by Bryan A. Garner (1987) states that “save” is an ARCHAISM when
used for “except”. It should be eschewed, although, as the examples following illustrate, it is still
common in legal prose. e.g., `The law-of-the-circuit rule forbids one panel to overrule another save
[read except] when a later statute or Supreme Court decision has changed the applicable law’.
In Williams versus Milotin, the High Court of Australia, while construing the words “save as otherwise
provided in this Act” stated: “.... In fact the words “save as otherwise provided in this Act” are a
reflexion of the words “except” - or “save” - “as hereinafter excepted”; Lalu Prasad Yadav versus State
of Bihar, 2010 INSC 246.
Scheme of Section 173
The scheme of Section 173 of the Code even deals with the scheme of exclusion of documents or
statements submitted to the Court. In this regard, one can make a reference to the provisions of Section
173(6) of the Code, which empowers the investigating agency to make a request to the Court to exclude
that part of the statement or record and from providing the copies thereof to the accused, which are
not essential in the interest of justice, and where it will be inexpedient in the public interest to furnish
such statement. The framers of the law, in their wisdom, have specifically provided a limited mode
of exclusion, the criteria being no injustice to be caused to the accused and greater public interest
being served. This itself is indicative of the need for a fair and proper investigation by the concerned
agency. What ultimately is the aim or significance of the expression ‘fair and proper investigation’ in
criminal jurisprudence? It has a twin purpose. Firstly, the investigation must be unbiased, honest, just
and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring
out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair
investigation are satisfied, there will be the least requirement for the court of law to interfere with the
investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by
fair and investigative means in accordance with law would essentially repel the very basis of an unfair,
tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a
specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of
the settled principles of investigative canons; Vinay Tyagi versus Irshad Ali @ Deepak, 2013 (5) SCC 762.
—————

152 Code of Criminal Procedure, 1973

 Objective Type Questions
1. The Criminal Procedure Code, 1973 came into time being in force; and “non-bailable offence”
force on:— means any other offence.
(A) April 1, 1974 4. The provisions of Code of Criminal Procedure,
(B) January 1, 1974 1973, other than those relating to Chapter
(C) June 1, 1973 VIII, X and XI, thereof shall not apply in which
(D) January 1, 1973 of the following:—
Ans. (A) (A) State of Tripura
y The Criminal Procedure Code, 1973 came into (B) State of Assam
force on 1 April 1974. [Section 1(3)]
(C) State of Meghalaya
y The Criminal Procedure Code, 1973 was passed (D) State of Nagaland
on 25 January 1974. Ans. (D)
y The Criminal Procedure Code, 1973 was It extends to the whole of India:
enacted in the year 1973. Provided that the provisions of this Code, other
y The Criminal Procedure Code, 1973 came into than those relating to Chapters VIII, X, and XI
force as Act number 2 of the year 1974. thereof, shall not apply—
y It was enacted with a view to consolidate and (a) to the State of Nagaland,
amend the law relating to Criminal Procedure. (b) to the tribal areas, but the concerned State
Government may, by notification, apply such
2. The Criminal Procedure Code, 1973 was last
provisions or any of them to the whole or part
amended on:—
of the State of Nagaland or such tribal areas,
(A) 1 August 2018
as the case may be, with such supplemental,
(B) 6 August 2018
incidental or consequential modifications, as
(C) 11 August 2018
may be specified in the notification.
(D) 16 August 2018
Explanation.—In this section, “tribal areas”
Ans. (C)
means the territories which immediately before
y The Criminal Procedure Code, 1973 was last
the 21st day of January, 1972, were included in the
amended on 11th August, 2018.
tribal areas of Assam, as referred to in paragraph
y The Criminal Law (Amendment) Act, 2018:— An
20 of the Sixth Schedule to the Constitution,
Act further to amend the Indian Penal Code, other than those within the local limits of the
Indian Evidence Act, 1872, the Code of Criminal municipality of Shillong. [Section 1(2) of the Code
Procedure, 1973 and the Protection of Children of Criminal Procedure, 1973] [Jammu and Kashmir
from Sexual Offences Act, 2012. Reorganisation Act, 2019] [Words, “except the
3. ‘Bailable offence’ means:— State of Jammu and Kashmir” shall be omitted]
(A) an offence which is shown as bailable in NOTE:
the First Schedule under the CrPC Earlier Law: This Act shall extend to the whole of
(B) an offence which is made available by India except the State of Jammu & Kashmir.
any other law for the time being in force Law after 2019 Amendment: This Act shall extend
(C) Both (A) and (B) to the whole of India. [Jammu and Kashmir
(D) None of the above. Reorganisation Act, 2019] [Words, “except the
Ans. (C) State of Jammu and Kashmir” shall be omitted]
Section 2(a), “bailable offence” means an offence 5. The definition of “Victim” has been inserted
which is shown as bailable in the First Schedule, in Cr.P.C. in:—
or which is made available by any other law for the

Code of Criminal Procedure, 1973 153

 (A) 2008 the general convenience of the parties
(B) 2009 and the witnesses to hold its sittings at
(C) 2010 any other place in the Sessions Division,
(D) 2011 it may with the consent of the Public
Ans. (B) Prosecutor sit at that place for the
y “Victim” means a person who has suffered any disposal of the case.
loss or injury caused by reason of the act or Ans. (B)
omission for which the accused person has Section 9(6), The Court of Session shall ordinarily
been charged and the expression “victim” hold its sitting at such place or places as the High
includes his or her guardian or legal heir. Court may, by notification, specify; but, if, in any
[Section 2(wa) of Cr.P.C.] particular case, the Court of Session is of opinion
y Section 2(wa) was inserted by Act 5 of 2009, that it will tend to the general convenience of the
Section 2 (w.e.f. 31-12-2009) parties and witnesses to hold its sittings at any
other place in the sessions division, it may, with
6. The Court of Sessions shall ordinarily hold
the consent of the prosecution and the accused,
its sitting as per Section 9 of the Code of
sit at that place for the disposal of the case or the
Criminal Procedure:—
examination of any witness or witnesses therein.
(A) at such places or places at the High Explanation.—For the purposes of this Code,
Court may, by notification, specify, or if “appointment” does not include the first
any particular case, the Court of Session appointment, posting or promotion of a person
is of opinion that it will tend to the by the Government to any Service, or post in
general convenience of the parties and connection with the affairs of the Union or of a
the witnesses to hold its sittings at any State, where under any law, such appointment,
other place in the Session Division. posting or promotion is required to be made by
(B) at such place or places at the High Court Government.
may, by notification, specify, or if any
7. Section 27 of the Cr.P.C. deals with:—
particular case, the Court of Session is
(A) Trial of Persons of Unsound Mind
of opinion that it will tend to the general
(B) Trial of Non-Citizens of India
convenience of the parties and the
(C) Trial of Juveniles
witnesses to hold its sittings at any other
(D) Trial of Diplomats
place in the Session Division, it may with
Ans. (C)
the consent of the prosecution and the
Section 27 of the Cr.P.C. deals with trials of
accused sit at that place for the disposal
Juveniles.
of the case.
Any offence not punishable with death or
(C) at such place or places at the State
imprisonment for life, committed by any person
Government may, by notification, specify,
who at the date when he appears or is brought
or if any particular case, the Court of
before the Court is under the age of sixteen years,
Session is of opinion that it will tend to
may be tried by the Court of a Chief Judicial
the general convenience of the parties
Magistrate, or by any Court specially empowered
and the witnesses to hold its sittings at
under the Children Act, 1960 (60 of 1960), or any
any other place in the Session Division, it
other law for the time being in force providing
may with the consent of the prosecution
for the treatment, training and rehabilitation of
and the accused sit at that place for the
youthful offenders. [Section 27 of Cr.P.C.]
disposal of the case.
(D) If in any particular case, the court of 8. Section 41 Cr.P.C. is not controlled by Section
Session is of opinion that it will tend to 55 Cr.P.C. as:—

154 Code of Criminal Procedure, 1973

 (A) the arrest is made with a warrant conspicuous place of such town or village;
(B) the arrest is without a warrant (c) a copy thereof shall be affixed to some
(C) the arrest affects the investigation conspicuous part of the Court-house;
(D) there is no arrest at all (ii) the Court may also, if it thinks fit, direct a
Ans. (B) copy of the proclamation to be published in
Section 41 Cr.P.C. is not controlled by Section 55 a daily newspaper circulating in the place in
Cr.P.C. as the arrest is without a warrant. which such person ordinarily resides.
9. A warrant of arrest is a command and should
11. In proceeding under Section 107 of the Cr.P.C.
be:—
an executive magistrate may require to
(A) Must be in writing execute a bond for keeping peace for such
(B) Must be signed, sealed and issued by a period, not exceeding:—
Magistrate
(A) one year
(C) Addressed to a police officer
(B) two years
(D) All the above
(C) three years
Ans. (D)
(D) six months
Section 70(1), Form of warrant of arrest and
Ans. (A)
duration.—(1) Every warrant of arrest issued by a
Section 107, Security for keeping the peace in
Court under this Code shall be in writing, signed
other cases.—(1) When an Executive Magistrate
by the presiding officer of such Court and shall
receives information that any person is likely
bear the seal of the Court.
to commit a breach of the peace or disturb the
10. A valid proclamation under Section 82 of the public tranquillity or to do any wrongful act that
Code of Criminal Procedure, 1973 requires:— may probably occasion a breach of the peace or
(A) public reading of the proclamation in disturb the public tranquillity and is of opinion
a conspicuous place of town or village that there is sufficient ground for proceeding, he
where the accused ordinarily resides. may, in the manner hereinafter provided, require
(B) a copy of the proclamation should be such person to show cause why he should not
affixed at some conspicuous place of be ordered to execute a bond with or without
the house in which the victim resides. sureties, for keeping the peace for such period,
(C) if passed by the Sessions Judge, a copy not exceeding one year, as the Magistrate thinks
of the proclamation should be affixed to fit.
some conspicuous part of the High Court
12. Under what appropriate Section, a Magistrate
of the State. may issue an order of injunction?
(D) a copy of the proclamation is affixed on
(A) Section 133
conspicuous part of all police stations
(B) Section 142
in the town/village where the crime was
(C) Section 144
committed.
(D) Section 145
Ans. (A)
Ans. (B)
Section 82(2), (2) The proclamation shall be
If a Magistrate making an order under Section 133
published as follows:—
considers that immediate measures should be
(i) (a) it shall be publicly read in some
taken to prevent imminent danger or injury of a
conspicuous place of the town or village
serious kind to the public, he may issue such an
in which such person ordinarily resides;
injunction to the person against whom the order
(b) it shall be affixed to some conspicuous
was made, as is required to obviate or prevent
part of the house or homestead in which
such danger or injury pending the determination
such person ordinarily resides or to some
of the matter. [Section 142(1)]

Code of Criminal Procedure, 1973 155

 13. A Magistrate has the power to direct the Section 188, When an offence is committed
police to investigate an offence in Cr.P.C. outside India—
under:— (a) by a citizen of India, whether on the high
(A) Section 156(3) Cr.P.C. seas or elsewhere; or
(B) Section 156(2) Cr.P.C. (b) by a person, not being such citizen, on any
(C) Section 156(1) Cr.P.C. ship or aircraft registered in India, he may
(D) All of the above be dealt with in respect of such offence as
Ans. (A) if it had been committed at any place within
Section 156, Police officer’s power to investigate India at which he may be found:
cognizable case.—(1) Any officer in charge of Provided that, notwithstanding anything in any of
a police station may, without the order of a the preceding sections of this Chapter, no such
Magistrate, investigate any cognizable case offence shall be inquired into or tried in India
which a Court having jurisdiction over the local except with the previous sanction of the Central
area within the limits of such station would have Government.
power to inquire into or try under the provisions
16. Cognizance of offence of defamation under
of Chapter XIII.
Chapter XXI of IPC can be taken:—
(2) No proceeding of a police officer in any such
(A) On a complaint made by an aggrieved
case shall at any stage be called in question on
person
the ground that the case was one which such
(B) On a police report
officer was not empowered under this section to
(C) Suo motu
investigate.
(D) All of the above
(3) Any Magistrate empowered under Section
Ans. (A)
190 may order such an investigation as
Section 199(1), Prosecution for defamation.—(1)
above-mentioned.
No Court shall take cognizance of an offence
14. Judicial confession can be recorded by
punishable under Chapter XXI of the Indian Penal
following the procedure prescribed in
Code (45 of 1860) except upon a complaint made
............... of the code of Criminal Procedure,
by some person aggrieved by the offence:
1973.
Provided that where such person is under the
(A) Section 164 age of eighteen years, or is an idiot or a lunatic,
(B) Section 364 or is from sickness or infirmity unable to make
(C) Both the sections a complaint, or is a woman who, according to
(D) None of these the local customs and manners, ought not to
Ans. (A) be compelled to appear in public, some other
Judicial confession can be recorded by following person may, with the leave of the Court, make a
the procedure prescribed in Section 164 of the complaint on his or her behalf.
Code of 1973.
17. A Magistrate may dispense with personal
15. Under which section of the Criminal Procedure attendance of accused under:—
Code, the Jurisdiction of Criminal Courts has
(A) Section 204 Cr.P.C.
been given for offences committed outside
(B) Section 205 Cr.P.C.
India?
(C) Section 206 Cr.P.C.
(A) Section 177 (D) Section 207 Cr.P.C.
(B) Section 179 Ans. (B)
(C) Section 183 A Magistrate may dispense with personal
(D) Section 188 attendance of accused under Section 205.
Ans. (D)

156 Code of Criminal Procedure, 1973

Section 205, (1) Whenever a Magistrate issues a (B) Frame a formal charge
summons, he may, if he sees reason to do so, (C) Ask him whether he pleads guilty
dispense with the personal attendance of the (D) Ask him whether he has any defence to
accused and permit him to appear by his pleader. make
(2) But the Magistrate inquiring into or trying Ans. (B)
the case may, in his discretion, at any stage of It is unnecessary to frame a formal charge.
the proceedings, direct the personal attendance Section 251, When in a summons-case the accused
of the accused, and, if necessary, enforce such appears or is brought before the Magistrate, the
attendance in the manner hereinbefore provided. particulars of the offence of which he is accused
18. Which provision of Cr.P.C. empowers a criminal shall be stated to him, and he shall be asked
court to recall and re-examine witnesses in a whether he pleads guilty or has any defence to
criminal case? make, but it shall not be necessary to frame a
(A) Section 217 formal charge.
(B) Section 311 20. Which of the following Sections does not
(C) Both (a) & (b) provide for joinder of charges?
(D) None of above
(A) Section 219
Ans. (C)
(B) Section 221
Whenever a charge is altered or added to by the
(C) Section 222
Court after the commencement of the trial, the
(D) Section 225
prosecutor and the accused shall be allowed—
Ans. (D)
(a) to recall or re-summon, and examine with
reference to such alteration or addition, any y Section 225 does not provide for the joining
witness who may have been examined, unless of charges.
the Court, for reasons to be recorded in writing, y Section 225 says in every trial before a Court of
considers that the prosecutor or the accused, as Session, the prosecution shall be conducted
the case may be, desires to recall or re-examine by a Public Prosecutor.
such witness for the purpose of vexation or delay 21. When in a summons-case the accused
or for defeating the ends of justice. [Section appears or is brought before the Magistrate:—
217(a)] (A) The prosecutor shall open his case by
Section 311 empowers a criminal court to recall describing the charge brought against the
and re-examine witnesses in a criminal case. Any accused and stating by what evidence
Court may, at any stage of any inquiry, trial or other he proposes to prove the guilt of the
proceeding under this Code, summon any person accused.
as a witness, or examine any person in attendance, (B) The Magistrate shall frame in writing
though not summoned as a witness, or recall and a charge against the accused if upon
re-examine any person already examined; and considering the police report and the
the Court shall summon and examine or recall documents sent with it and making such
and re-examine any such person if his evidence examination as the Magistrate thinks
appears to it to be essential to the just decision necessary the Magistrate is of the opinion
of the case. (Section 311) that there is ground for presuming
19. In a summons case, at the time of appearance that the accused has committed an
of the accused before the Magistrate, it is offence.
unnecessary to:— (C) the particulars of the offence of which
(A) state the particulars of the offence of he is accused shall be stated to him,
which he is accused and he shall be asked whether he pleads

Code of Criminal Procedure, 1973 157

 guilty or has any defence to make, but it Explanation.—In this section, “accused” includes
shall not be necessary to frame a formal a person in relation to whom any proceeding
charge. under Chapter VIII has been commenced under
(D) None of these this Code.
Ans. (C) 24. Which one of the following Sections of Cr.P.C.
Section 251, When in a summons-case the accused provides free legal aid to the accused?
appears or is brought before the Magistrate, the (A) Section 304
particulars of the offence of which he is accused (B) Section 306
shall be stated to him, and he shall be asked (C) Section 301
whether he pleads guilty or has any defence to (D) Section 302
make, but it shall not be necessary to frame a Ans. (A)
formal charge. Section 304 provides free legal aid to the accused.
22. Chapter XXIA of the Cr.P.C. was incorporated 25. Under Section 313 of Cr.P.C. the statement
in the year;— of the accused:—
(A) 2005 (A) will be recorded on oath
(B) 2006 (B) Will be recorded without oath
(C) 2004 (C) either on oath or without oath as per the
(D) 2003 discretion of the Court
Ans. (B) (D) Court can exempt from oath
Chapter 21A was inserted by Act 2 of 2006, s. 4 Ans. (B)
(w.e.f. 5-7-2006). Under Section 313 of Cr.P.C. the statement of the
23. Which provision requires that evidence accused will be recorded without oath.
must be taken in the presence of the No oath shall be administered to the accused
accused? when he is examined under sub-section (1).
(A) Section 302 of I.P.C [Section 313(2)]
(B) Section 154 of the Evidence Act 26. Under Section 315 of Cr.P.C.:—
(C) Section 277 of Cr.P.C (A) An accused cannot be a witness
(D) Section 273 of Cr.P.C (B) An accused can be compelled to give his
Ans. (D) own evidence generally
Section 273, Evidence to be taken in presence (C) An accused can be called as a witness
of accused.—Except as otherwise expressly only on his own request in writing
provided, all evidence taken in the course of the (D) Either (A) or (B)
trial or other proceeding shall be taken in the Ans. (C)
presence of the accused, or, when his personal y As per the provisions of Section 315 an accused
attendance is dispensed with, in the presence of can be called as a witness only on his own
his pleader: request in writing.
Provided that where the evidence of a woman
y Any person accused of an offence before a
below the age of eighteen years who is alleged
Criminal Court shall be a competent witness
to have been subjected to rape or any other
for the defence and may give evidence on oath
sexual offence, is to be recorded, the court may
in disproof of the charges made against him or
take appropriate measures to ensure that such
any person charged together with him at the
woman is not confronted by the accused while
same trial.
at the same time ensuring the right of cross-
Provided that—(a) he shall not be called as a
examination of the accused.
witness except on his own request in writing; (b)

158 Code of Criminal Procedure, 1973

his failure to give evidence shall not be made the person is sentenced to death, the sentence
subject of any comment by any of the parties or shall direct that he be hanged by the neck till
the Court or give rise to any presumption against he is dead” ?
himself or any person charged together with him (A) Section 354(2)
that the same trial. [Section 315(1)] (B) Section 354(3)
27. Offences not covered under Section 320 of (C) Section 354(4)
the Code of Criminal Procedure are:— (D) Section 354(5)
(A) Non-compoundable Ans. (D)
(B) Compoundable with the leave of Trial When any person is sentenced to death, the
Court sentence shall direct that he be hanged by the
(C) Compoundable with the leave of Court neck till he is dead. [Section 354(5)]
of Sessions 30. Under which provision of law, a sentence
(D) Compoundable with the leave of High of death passed by the Sessions Court is
Court subject to confirmation by the High Court?
Ans. (A) (A) Section 369 of Cr.P.C.
Offences not covered under Section 320 of the Code (B) Section 367 of Cr.P.C.
of Criminal Procedure are non-compoundable. (C) Section 366 of Cr.P.C.
Section 320(9), No offence shall be compounded (D) Section 370 of Cr.P.C.
except as provided by this section. Ans. (C)
28. The provision in the Cr.P.C. which may be When the Court of Session passes a sentence
invoked by a civil court is Section:— of death, the proceedings shall be submitted to
(A) 349 the High Court, and the sentence shall not be
(B) 350 executed unless it is confirmed by the High Court.
(C) 345 [Section 366(1)]
(D) 250 31. Which one of the following is not correctly
Ans. (C) matched:
Section 345 provides procedure in certain cases (A) Reference to High Court — Section 395
of contempt.—(1) When any such offence as is (B) High Court’s Power of Revision — Section
described in Section 175, Section 178, Section 179, 401
Section 180 or Section 228 of the Indian Penal (C) Abatement of Appeal — Section 393
Code (45 of 1860) is committed in the view or (D) Appeals from conviction — Section 374
presence of any Civil, Criminal, or Revenue Court, Ans. (C)
the Court may cause the offender to be detained Section 393 deals with finality of judgments and
in custody, and may, at any time before the rising orders on appeal.
of the Court or the same day, take cognizance 32. Which of the following provisions deals with
of the offence and, after giving the offender a the power of the Sessions Judge of revision?
reasonable opportunity of showing cause why (A) Section 401 Cr.P.C.
he should not be punished under this section, (B) Section 400A Cr.P.C.
sentence the offender to fine not exceeding two (C) Section 402 Cr.P.C.
hundred rupees, and, in default of payment of (D) Section 399 Cr.P.C.
fine, to simple imprisonment for a term which Ans. (D)
may extend to one month, unless such fine be Section 399 deals with the power of the Sessions
sooner paid. Judge of revision.
29. Which of the following sections of Criminal (1) In the case of any proceeding the record of
Procedure Code provides that “when any which has been called for by himself, the

Code of Criminal Procedure, 1973 159

 Sessions Judge may exercise all or any of the or remission of a sentence, the appropriate
powers which may be exercised by the High Government may require the presiding
Court under sub-section (1) of Section 401. Judge of the Court before or by which the
(2) Where any proceeding by way of revision conviction was had or confirmed, to state
is commenced before a Sessions Judge his opinion as to whether the application
under sub-section (1), the provisions of should be granted or refused, together with
sub-sections (2), (3), (4) and (5) of Section his reasons for such opinion and also to
401 shall, so far as may be, apply to such forward with the statement of such opinion
proceeding and references in the said sub- a certified copy of the record of the trial or
sections to the High Court shall be construed of such record thereof as exists.
as references to the Sessions Judge. (3) If any condition on which a sentence has
(3) Where any application for revision is made been suspended or remitted is, in the opinion
by or on behalf of any person before the of the appropriate Government, not fulfilled,
Sessions Judge, the decision of the Sessions the appropriate Government may cancel
Judge thereon in relation to such person the suspension or remission, and thereupon
shall be final and no further proceeding by the person in whose favour the sentence
way of revision at the instance of such person has been suspended or remitted may, if
shall be entertained by the High Court or any at large, be arrested by any police officer,
other Court. without warrant and remanded to undergo
the unexpired portion of the sentence.
33. Which one of the following may remit whole
(4) The condition on which a sentence is
or any part of the punishment, if any person
suspended or remitted under this section
has been sentenced to punishment for an
may be one to be fulfilled by the person in
offence?
whose favour the sentence is suspended or
(A) The appropriate Government, either
remitted, or one independent of his will.
Central or State Government
(B) The Supreme Court (5) The appropriate Government may, by general
(C) The High Court rules or special orders, give directions as
(D) The Court of Session to the suspension of sentences and the
Ans. (A) conditions on which petitions should be
The appropriate Government, either Central presented and dealt with:
or State Government may remit whole or any Provided that in the case of any sentence
part of the punishment, if any person has been (other than a sentence of fine) passed on a
sentenced to punishment for an offence. male person above the age of eighteen years,
Section 432, Power to suspend or remit no such petition by the person sentenced or
sentences.— by any other person on his behalf shall be
(1) When any person has been sentenced to entertained, unless the person sentenced is
punishment for an offence, the appropriate in jail, and—
Government may, at any time, without (A) where such petition is made by the person
conditions or upon any conditions which sentenced, it is presented through the
the person sentenced accepts, suspend the officer in charge of the jail; or
execution of his sentence or remit the whole (B) where such a petition is made by any
or any part of the punishment to which he other person, it contains a declaration
has been sentenced. that the person sentenced is in jail.
(2) Whenever an application is made to the
appropriate Government for the suspension

160 Code of Criminal Procedure, 1973

(6) The provisions of the above sub-sections the said period or release him on bail instead of
shall also apply to any order passed by a the personal bond with or without sureties.
Criminal Court under any section of this 35. Can anticipatory bail be granted in respect
Code or of any other law, which restricts the of bailable offences, and if so in what
liberty of any person or imposes any liability circumstances?
upon him or his property. (A) Anticipatory bail cannot be granted in
(7) In this section and in Section 433, the bailable offences
expression “appropriate Government” (B) Bail can be granted only in case the
means,— petitioner is a woman, a minor or a sick
(a) in cases where the sentence is for an person
offence against, or the order referred to (C) There is no distinction between bailable
in sub-section (6) is passed under, any and non-bailable offences so far as
law relating to a matter to which the anticipatory bail is concerned
executive power of the Union extends, (D) None of the above
the Central Government; Ans. (A)
(b) in other cases, the Government of Anticipatory bail cannot be granted in bailable
the State within which the offender is offences.
sentenced or the said order is passed. Anticipatory bail can be invoked in cases of non-
bailable offences.
34. Maximum period for which under-trial can be
36. Under which provision, can the Court issue a
detained:—
warrant of arrest against a person released
(A) is decided by the court
on bail and require him to furnish sufficient
(B) not exceeding the maximum period of
sureties?
punishment for the said offence
(A) Section 440 Cr.P.C.
(C) not more than half of the maximum
(B) Section 446 Cr.P.C.
period of punishment for the said offence
(C) Section 441 Cr.P.C.
(D) none of the above
(D) Section 443 Cr.P.C.
Ans. (C)
Ans. (D)
Maximum period for which an under-trial can be
Section 443, Power to order sufficient bail
detained is not more than half of the maximum
when that first taken is insufficient.—If, through
period of punishment for the said offence.
mistake, fraud or otherwise, insufficient sureties
Section 436A, Where a person has, during the
have been accepted, or if they afterwards become
period of investigation, inquiry or trial under this
insufficient, the Court may issue a warrant of
Code of an offence under any law (not being
arrest directing that the person released on bail
an offence for which the punishment of death
be brought before it and may order him to find
has been specified as one of the punishments
sufficient sureties, and, on his failing so to do,
under that law) undergone detention for a period
may commit him to jail.
extending up to one-half of the maximum period
of imprisonment specified for that offence under 37. Cash in lieu of surety bond can be permitted
that law, he shall be released by the Court on his vide:—
personal bond with or without sureties: (A) Section 443 Cr.P.C.
Provided that the Court may, after hearing the (B) Section 444 Cr.P.C.
Public Prosecutor and for reasons to be recorded (C) Section 445 Cr.P.C.
by it in writing, order the continued detention of (D) Section 446 Cr.P.C.
such person for a period longer than one-half of Ans. (C)

Code of Criminal Procedure, 1973 161

 Section 445, When any person is required by any (A) The inquiry, trial or other proceedings
Court or officer to execute a bond with or without shall be void ab initio.
sureties, such Court or officer may, except in (B) The inquiry, trial or other proceedings
the case of a bond for good behaviour, permit cannot be set aside as void unless it has
him to deposit a sum of money or Government occasioned in failure of justice
promissory notes to such amount as the Court (C) The inquiry, trial or other proceedings,
or officer may fix in lieu of executing such bond. cannot be set aside even if it has
38. In regard to sale of perishable property, occasioned in failure of justice
if the person entitled to the possession (D) Either (A) or (C)
of such property is not known or absent Ans. (B)
and the property is subject to speedy and No finding, sentence or order of any Criminal
natural decay, the Magistrate may direct it Court shall be set aside merely on the ground
to be sold within _____ of the date of such that the inquiry, trial or other proceedings in the
proclamation:— course of which it was arrived at or passed, took
(A) One month place in a wrong sessions division, district, sub-
(B) Three months division or other local area, unless it appears
(C) Six months that such error has in fact occasioned a failure of
(D) Nine months justice. (Section 462)
Ans. (C) 40. Under Criminal Procedure Code, 1973, what is
y Section 457(2), If the person so entitled is the effect of a trial conducted in the wrong
known, the Magistrate may order the property place?
to be delivered to him on such conditions (if (A) Vitiate itself
any) as the Magistrate thinks fit and if such (B) Vitiate if caused failure of justice
person is unknown, the Magistrate may detain (C) Seriousness has to be seen
it and shall, in such case, issue a proclamation (D) Is to be referred to Session Judge
specifying the articles of which such property Ans. (B)
consists, and requiring any person who may No finding, sentence or order of any Criminal
have a claim thereto, to appear before him and Court shall be set aside merely on the ground
establish his claim within six months from the that the inquiry, trial or other proceedings in the
date of such proclamation. course of which it was arrived at or passed, took
y Section 458, Procedure when no claimant place in a wrong sessions division, district, sub-
appears within six months.—(1) If no person division or other local area, unless it appears
within such period establishes his claim to that such error has in fact occasioned a failure of
such property, and if the person in whose justice. (Section 462)
possession such property was found is unable 41. The period of limitation in case of an offence
to show that it was legally acquired by him, punishable with fine only as provided under
the Magistrate may by order direct that Section 468 of the Code of Criminal Procedure
such property shall be at the disposal of the is:—
State Government and may be sold by that (A) 3 years
Government and the proceeds of such sale (B) 6 months
shall be dealt with in such manner as may be (C) 15 days
prescribed. (D) 3 months
Ans. (B)
39. In case where an inquiry, trial or other
Section 468(2), The period of limitation shall be—
proceedings have been conducted in a wrong
six months, if the offence is punishable with fine
place:—
only.

162 Code of Criminal Procedure, 1973

42. No Court shall take cognizance of an offence (D) To tender pardon to accomplice under
under the Criminal Procedure Code after Section 306 of the Code of Criminal
the expiry of the period of limitation under Procedure.
Section 468. Which one of the following is Ans. (C)
not correct? If any Magistrate is not empowered by law to
(A) Six months, if the offence is punishable take cognizance of an offence under clause (a)
with fine only or clause (b) of sub-section (1) of Section 190.
[Section 460(e)]
(B) One year, if the offence is punishable with
imprisonment for a term not exceeding 44. Under Criminal Procedure Code, 1973, the
one year date of commencement of the period of
limitation has been provided under:—
(C) Two years in respect of economic offence
(A) Section 467
(D) Three years, if the offence is punishable
(B) Section 468
with imprisonment for a term not
(C) Section 469
exceeding one year but not exceeding
(D) Section 470
three years.
Ans. (C)
Ans. (C) The date of commencement of the period of
(1) Statement C is not correct. limitation has been provided under Section 469.
(2) The period of limitation shall be— Section 469, Commencement of the period of
limitation.—(1) The period of limitation, in relation
(A) six months, if the offence is punishable
to an offender, shall commence,—
with fine only;
(A) On the date of the offence; or
(B) one year, if the offence is punishable with
(B) Where the commission of the offence was
imprisonment for a term not exceeding
not known to the person aggrieved by the
one year;
offence or to any police officer, the first
(C) three years, if the offence is punishable
day on which such offence comes to the
with imprisonment for a term exceeding
knowledge of such person or to any police
one year but not exceeding three years.
officer, whichever is earlier; or
(3) For the purposes of this section, the period of
(C) Where it is not known by whom the offence
limitation, in relation to offences which may
was committed, the first day on which the
be tried together, shall be determined with
identity of the offender is known to the
reference to the offence which is punishable
person aggrieved by the offence or to the
with the more severe punishment or, as the
police officer making investigation into the
case may be, the most severe punishment.
offence, whichever is earlier.
43. Which of the following irregularities of a (2) In computing the said period, the day from
Magistrate, not empowered by law to do so, which such period is to be computed shall be
vitiates the proceedings? excluded.
(A) To hold inquiry under Section 176 Code 45. By which provision of Criminal Procedure Code
of Criminal Procedure 1973 the High Court has inherent powers?
(B) To make over a case under sub-section of (A) Section 474
Section 192 Code of Criminal Procedure (B) Section 480
(C) To take cognizance of an offence under (C) Section 481
clause (c) of sub-section (1) of Section (D) Section 482
190 of the Code of Criminal Procedure Ans. (D)

Code of Criminal Procedure, 1973 163

 y Section 482 preserves the inherent powers 47. Set-off to a convicted person:—
of the High Court to prevent an abuse of the (A) does not apply to the period of police
process of any court or to secure the ends of custody
justice. (B) applies to substantive sentence only
y Section 482 deals with the power of court to (C) applies to default sentence only
quash criminal proceedings. (D) applies to both the substantive and
default sentences.
y Section 482 Cr.P.C. deals with inherent powers
Ans. (B)
of the High Court.
Set-off to a convicted person applies to
y Exercise of power under Section 482 Cr.P.C. is
substantive sentences only.
the exception and not rule.
48. Classification of offences is given in Cr.P.C
y Section 482 also confers very wide power on
under:—
the Court to do justice and to ensure that the
(A) Section 320
process of the court is not permitted to be
(B) the First Schedule
abused.
(C) the Second Schedule
y Nothing in this Code shall be deemed to limit
(D) Section 482
or affect the inherent powers of the High Court
Ans. (B)
to make such orders as may be necessary to
y Classification of offences is given in the First
give effect to any order this Code, or to prevent
Schedule.
abuse of the process of any Court or otherwise
y Classification of offences means offences
to secure the ends of justice. (Section 482)
are classified for the purpose of trial and
46. Court can condone the delay under:— punishment. Offences are classified according
(A) Section 473 of the Code of Criminal to their nature in order to determine the
Procedure gravity of the offence.
(B) Section 468 of the Code of Criminal y Classification has also been done with
Procedure magnitude of the punishment as bailable and
(C) Section 469 of the Code of Criminal non-bailable offence.
Procedure y Offences are classified into two categories i.e.,
(D) Section 416 of the Code of Criminal cognizable and non-cognizable offences.
Procedure.
49. Which of the following combinations are
Ans. (A) correctly matched?
y Court can condone the delay under Section
(1) Made by Magistrate : Investigation
473.
(2) Object is to collect evidence : Inquiry
y Section 473 provides extension of period of (3) Ordinarily second stage of a criminal
limitation in certain cases. case : Inquiry
y Notwithstanding anything contained in the (4) It is not a judicial proceeding :
foregoing provisions of this Chapter, any Investigation
Court may take cognizance of an offence after (A) (1) and (2)
the expiry of the period of limitation, if it is (B) (2) and (3)
satisfied on the facts and in the circumstances (C) (3) and (4)
of the case that the delay has been properly (D) (2) and (4)
explained or that it is necessary so to do in Ans. (C)
the interests of justice. y Inquiry is ordinarily the second stage of a
criminal case.
y Investigation is not a judicial proceeding.

164 Code of Criminal Procedure, 1973

50. In summon-cases and inquiries, (C) Record of evidence
memorandum is the only:— (D) Record of all statements
(A) Record of witness Ans. (C)
(B) Record of accused statement In summon-cases and inquiries, a memorandum
is the only record of evidence.

Previous Years’ Questions

51. Assault or use of criminal force otherwise (A) Parliament or any State Legislature
than on grave provocation under Section 353 (B) The Parliament only
of the IPC is which kind of offence:— (C) The Supreme Court and Parliament
[HJS (Pre.), 2013] (D) State Legislature only
(A) Bailable and Cognizable Ans. (A)
(B) Bailable and Non-cognizable The Code of Criminal Procedure, 1973 can
(C) Non-bailable and Cognizable be amended by the Parliament or any State
(D) Non-bailable and Non-cognizable legislature.
Ans. (B) 54. In which of the following cases, the Supreme
First schedule, Court has issued specific guidelines regarding
Section: 352 arrest?
Offence: Assault or use of criminal force otherwise [29th BJS (Pre.), 2016]
than on grave provocation. (A) Vishakha versus State of Rajasthan
Punishment: Imprisonment for 3 months, or fine (B) AR Antulay’s Case
of 500 rupees, or both. (C) DK Basu’s Case
Cognizable or non-cognizable: Non-cognizable. (D) Nandini Satpathy’s Case
Bailable or Non-bailable: Bailable. Ans. (C)
By what Court is triable: Any magistrate. Case Reference: Shri DK Basu versus State of
Section: 353 West Bengal [(1997) 1 SCC 416]
Offence: Assault or use of criminal force to deter 11 Guidelines were issued by the Supreme Court
a public servant from discharge of his duty. to be followed in all cases of Arrest and detention
Punishment: Imprisonment for 2 years, or fine, or till legal provisions are made in that behalf as
both. preventive measures:
Cognizable or non-cognizable: Cognizable. 1. Police personnel carrying out the arrest and
Bailable or Non-bailable: Non-bailable. handling the interrogation of the arrestee
By what Court is triable: Any magistrate. should bear accurate, visible and clear
52. Which form mentioned in the Second identification and name togs with their
Schedule of Cr.P.C. is related with ‘Charge’? designations. The particulars of all such
[Uttarakhand JS (Pre.), 2019] police personnel who handle interrogation
(A) Form 31 of the arrestee must be recorded in a
(B) Form 32 register.
(C) Form 33 2. That the police officer carrying out the arrest
(D) Form 34 of the arrestee shall prepare a memo of
Ans. (B) arrest at the time of arrest and such memo
Form No. 32 of the Second Schedule of Cr.P.C. shall be attested by at least one witness
provides the format for framing of charge. who may be either a member of the family
53. The Code of Criminal Procedure, 1973 can be of the arrestee or a respectable person of
amended by:— the locality from where the arrest is made. It
[MPJS (Pre), 2012]

Code of Criminal Procedure, 1973 165

 shall also be counter signed by the arrestee appointed by the Director, Health Services
and shall contain the time and date of arrest. of the concerned State or Union Territory.
3. A person who has been arrested or detained Director, Health Services should prepare
and is being held in custody in a police station such a penal for all Tehsils and Districts as
or interrogation centre or other lock-up, shall well.
be entitled to have one friend or relative or 9. Copies of all the documents including the
other person known to him or having interest memo of arrest, referred to above, should be
in his welfare being informed, as soon as sent to the illaqa Magistrate (Area Magistrate)
practicable, that he has been arrested and for his record.
is being detained at the particular place, 10. The arrestee may be permitted to meet
unless the attesting witness of the memo of his lawyer during interrogation, though not
arrest is himself such a friend or a relative of throughout the interrogation.
the arrestee.
11. A police control room should be provided at
4. The time, place of arrest and venue of all district and state headquarters, where
custody of an arrestee must be notified by information regarding the arrest and the
the police where the next friend or relative place of custody of the arrestee shall be
of the arrestee lives outside the district or communicated by the officer causing the
town through the legal Aid Organisation in arrest, within 12 hours of effecting the arrest
the District and the police station of the area and at the police control room it should be
concerned telegraphically within a period of displayed on a conspicuous notice board.
8 to 12 hours after the arrest.
Note: It was further stated that “The requirements
5. The person arrested must be made aware of need to be strictly followed and the same would
this right to have someone informed of his apply with equal force to the other governmental
arrest or detention as soon he is put under agencies also to which a reference has been made
arrest or is detained. earlier.” These requirements do not detract from
6. An entry must be made in the diary at the various other directions given by the courts from
place of detention regarding the arrest of the time to time in connection with the safeguarding
person which shall also disclose the name of of the rights and dignity of the arrestee.
the next friend of the person who has been 55. In which case it was held by the Hon’ble
informed of the arrest and the names and Supreme Court that a married daughter is
particulars of the police officials in whose also liable to maintain her parents?
custody the arrestee is. [HPJS (Pre.), 2015]
7. The arrestee should, where he so requests, (A) Vijaya Manohar Arbat versus Kashi Rao
be also examined at the time of his arrest (B) Savita Ben versus State of Gujarat
and major and minor injuries, if any present (C) Kirtikant Vadodara versus State of
on his/her body, must be recorded at that Gujarat
time. The “Inspection Memo” must be signed (D) NB Bhikshu versus State of AP
both by the arrestee and the police officer Ans. (A)
effecting the arrest and its copy provided to Case Reference: Dr. (Mrs.) Vijaya Manohar Arbat
the arrestee. versus Kashi Rao Rajaram Sawai [AIR 1987 SC
8. The arrestee should be subjected to medical 1100]
examination by a trained doctor every 48 y A married daughter is also liable to maintain
hours during his detention in custody by a her parents.
doctor on the panel of approved doctors y Court was of the view that Section 125(1)(d)
has imposed a liability on both the son and the

166 Code of Criminal Procedure, 1973

 daughter to maintain their father or mother y Where the uncontroverted allegations made
who is unable to maintain himself or herself. in the FIR or complaint and the evidence
Section 488 of the old Criminal Procedure collected in support of the same do not
Code did not contain a provision like clause disclose the commission of any offence and
(d) of Section 125(1). The legislature in enacting make out a case against the accused.
Criminal Procedure Code, 1973 thought it wise y Where the allegations in the FIR do not
to provide for the maintenance of the parents constitute a cognizable offence but constitute
of a person when such parents are unable to only a non-cognizable offence, no investigation
maintain themselves. The purpose of such is permitted by a police officer without an
enactment is to enforce social obligation and order of a Magistrate as contemplated under
we do not think why the daughter should be Section 155(2) of the Code.
excluded from such obligation to maintain
y Where the allegations made in the FIR or
their parents.
complaint are so absurd and inherently
56. In which of the following cases, the Supreme improbable on the basis of which no prudent
Court of India has directed the High Courts to person can ever reach a just conclusion that
exercise jurisdiction under Section 482 of the there is sufficient ground for proceeding
Code of Criminal Procedure? against the accused.
[Uttarakhand JS (Pre.), 2016] y Where there is an express legal bar engrafted
(A) State of Haryana versus Bhajan Lal in any of the provisions of the Code or the
(B) Adalat Prasad versus Navin Jindal concerned Act (under which a criminal
(C) Dinesh Dalmiya versus CBI proceeding is instituted) to the institution and
(D) Dhananjay Chatterjee versus State of continuance of the proceedings and/or where
West Bengal there is a specific provision in the Code or the
Ans. (A) concerned Act, providing efficacious redress
Case Reference: State of Haryana versus Ch for the grievance of the aggrieved party.
Bhajan Lal [AIR 1992 SC 604] y Where a criminal proceeding is manifestly
“The Supreme Court of India considered the power attended with mala fide and/or where the
of the High Court to quash criminal proceedings proceeding is maliciously instituted with an
or FIR.” ulterior motive for wreaking vengeance on the
The following guidelines to be followed by High accused and with a view to spite him due to
Courts in exercise of their inherent powers to private and personal grudge.
quash a criminal complaint:—
y Where the allegations made in the First 57. Which one of the following cases is a
Information Report or the complaint, even if landmark case on ‘First Information Report’?
they are taken at their face value and accepted [Uttarakhand JS (Pre.) 2016]
in their entirety do not prima facie constitute (A) Lalita Kumari versus State of UP
any offence or make out a case against the (B) Moti Ram versus State of MP
accused. (C) Abdul Karim versus State of Karnataka
(D) Neelam Katara versus Union of India
y Where the allegations in the First Information
Ans. (A)
Report and other materials, if any, accompanying
Case Reference: Lalita Kumari versus Govt. of UP
the F.I.R. do not disclose a cognizable offence,
[W.P. (Crl) No. 68/2008, (2014) 2 SCC 1]
justifying an investigation by police officers
The Supreme Court issued the following
under Section 156(1) of the Code except under
Guidelines regarding the registration of FIR. It
an order of a Magistrate within the purview of
was held that “Registration of FIR is mandatory
Section 155(2) of the Code.

Code of Criminal Procedure, 1973 167

 if the information discloses the commission for example, over 3 months delay in
of cognizable offence.” Guidelines to read as reporting the matter without satisfactorily
follows:— explaining the reasons for delay.
y Registration of FIR is mandatory under Section The aforesaid are only illustrations and not
154 of the Code, if the information discloses exhaustive of all conditions which may warrant
commission of a cognizable offence and no preliminary inquiry.
preliminary inquiry is permissible in such a y While ensuring and protecting the rights of the
situation. accused and the complainant, a preliminary
y If the information received does not disclose inquiry should be made time bound and in
a cognizable offence but indicates the any case it should not exceed 7 days. The fact
necessity for an inquiry, a preliminary inquiry of such delay and the causes of it must be
may be conducted only to ascertain whether reflected in the General Diary entry.
cognizable offence is disclosed or not. y Since the General Diary/Station Diary/Daily
y If the inquiry discloses the commission Diary is the record of all information received in
of a cognizable offence, the FIR must be a police station, we direct that all information
registered. In cases where preliminary inquiry relating to cognizable offences, whether
ends in closing the complaint, a copy of the resulting in registration of FIR or leading to an
entry of such closure must be supplied to the inquiry, must be mandatorily and meticulously
first informant forthwith and not later than reflected in the said Diary and the decision
one week. It must disclose reasons in brief to conduct a preliminary inquiry must also be
for closing the complaint and not proceeding reflected, as mentioned above.
further.
58. Which Supreme Court case discusses the
y The police officer cannot avoid his duty of law relating to narco-analysis, from amongst
registering an offence if a cognizable offence the following decided cases:—
is disclosed. Action must be taken against [DJS (Pre.), 2015]
erring officers who do not register the FIR (A) Ram Reddy versus State of Maharashtra
if information received by him discloses a (B) Selvi versus State of Karnataka
cognizable offence. (C) State of Bombay versus Kathi Kalu Oghad
y The scope of preliminary inquiry is not to verify (D) Sharda versus Dharmpal
the veracity or otherwise of the information Ans. (B)
received but only to ascertain whether the Case Reference: Selvi versus State of Karnataka
information reveals any cognizable offence. [JT 2010 (5) SC 11]
y As to what type and in which cases preliminary Supreme Court discusses the law relating to
inquiry is to be conducted will depend on the narco-analysis:—Court said, the compulsory
facts and circumstances of each case. The administration of the impugned techniques
category of cases in which preliminary inquiry violates the `right against self- incrimination’.
may be made are as under: This is because the underlying rationale of the
(a) Matrimonial disputes/ family disputes. said right is to ensure the reliability as well as
voluntariness of statements that are admitted
(b) Commercial offences.
as evidence. This Court has recognised that the
(c) Medical negligence cases. protective scope of Article 20(3) extends to the
(d) Corruption cases. investigative stage in criminal cases and when
(e) Cases where there is abnormal delay/ read with Section 161(2) of the Code of Criminal
laches in initiating criminal prosecution, Procedure, 1973 it protects accused persons,
suspects as well as witnesses who are examined

168 Code of Criminal Procedure, 1973

during an investigation. The test results cannot be y In light of these conclusions, we hold that
admitted in evidence if they have been obtained no individual should be forcibly subjected to
through the use of compulsion. Article 20(3) any of the techniques in question, whether in
protects an individual’s choice between speaking the context of investigation in criminal cases
and remaining silent, irrespective of whether the or otherwise. Doing so would amount to an
subsequent testimony proves to be inculpatory unwarranted intrusion into personal liberty.
or exculpatory. Article 20(3) aims to prevent However, we do leave room for the voluntary
the forcible ‘conveyance of personal knowledge administration of the impugned techniques in
that is relevant to the facts in issue’. The results the context of criminal justice, provided that
obtained from each of the impugned tests bear certain safeguards are in place. Even when
a ‘testimonial’ character and they cannot be the subject has given consent to undergo any
categorised as material evidence. of these tests, the test results by themselves
y We are also of the view that forcing an individual cannot be admitted as evidence because the
to undergo any of the impugned techniques subject does not exercise conscious control
violates the standard of `substantive due over the responses during the administration
process’ which is required for restraining of the test. However, any information or
personal liberty. Such a violation will occur material that is subsequently discovered with
irrespective of whether these techniques are the help of voluntary administered test results
forcibly administered during the course of an can be admitted, in accordance with Section
investigation or for any other purpose since 27 of the Evidence Act, 1872.
the test results could also expose a person to y The National Human Rights Commission had
adverse consequences of a non-penal nature. published ‘Guidelines for the Administration
The impugned techniques cannot be read into of Polygraph Test (Lie Detector Test) on an
the statutory provisions which enable medical Accused’ in 2000. These guidelines should
examination during investigation in criminal be strictly adhered to and similar safeguards
cases, i.e. the Explanation to Sections 53, 53A should be adopted for conducting the ‘Narco-
and 54 of the Code of Criminal Procedure, analysis technique’ and the ‘Brain Electrical
1973. Such an expansive interpretation is not Activation Profile’ test.
feasible in light of the rule of ‘ejusdem generis’ The text of these guidelines has been reproduced
and the considerations which govern the below:
interpretation of statutes in relation to scientific (a) No Lie Detector Tests should be administered
advancements. We have also elaborated how except on the basis of consent of the
the compulsory administration of any of these accused. An option should be given to the
techniques is an unjustified intrusion into accused whether he wishes to avail such a
the mental privacy of an individual. It would test.
also amount to ‘cruel, inhuman or degrading (b) If the accused volunteers for a Lie Detector
treatment’ with regard to the language of Test, he should be given access to a lawyer and
evolving international human rights norms. the physical, emotional and legal implication
Furthermore, placing reliance on the results of such a test should be explained to him by
gathered from these techniques comes into the police and his lawyer.
conflict with the `right to fair trial’. Invocations (c) The consent should be recorded before a
of a compelling public interest cannot justify Judicial Magistrate.
the dilution of constitutional rights such as (d) During the hearing before the Magistrate,
the ‘right against self-incrimination’. the person alleged to have agreed should be
duly represented by a lawyer.

Code of Criminal Procedure, 1973 169

 (e) At the hearing, the person in question y A Chief Judicial Magistrate may pass a sentence
should also be told in clear terms that of imprisonment not exceeding seven years.
the statement that is made shall not be a y Section 29(1), The Court of a Chief Judicial
`confessional’ statement to the Magistrate Magistrate may pass any sentence authorised
but will have the status of a statement made by law except a sentence of death or of
to the police. imprisonment for life or of imprisonment for a
(f) The Magistrate shall consider all factors term exceeding seven years.
relating to the detention including the
62. When can police arrest a person without
length of detention and the nature of the
warrant?
interrogation.
[Uttarakhand JS (Pre.), 2019]
(g) The actual recording of the Lie Detector Test
(A) In case of cognizable offences only
shall be done by an independent agency
(B) In case of proclaimed offender only
(such as a hospital) and conducted in the
(C) Deserter from Armed forces only
presence of a lawyer.
(D) All of these
(h) A full medical and factual narration of the
Ans. (D)
manner of the information received must be
y Police can arrest a person without warrant in
taken on record.
all the above stated cases.
59. A has committed robbery on a train bound to
y Section 41(a), In case of cognizable offences
Varanasi from Haridwar. A can be inquired or
only.
tried at:—
[Uttarakhand JS (Pre.), 2016] y Section 41(c), In case of proclaimed offender
(A) Haridwar only only.
(B) Varanasi only y Section 41(f), Deserter from Armed forces only.
(C) The place of commission of offence only
63. The memorandum of arrest to be prepared
(D) Any court in the course of that journey
by every police officer while making an arrest
Ans. (D)
shall be:—
A has committed robbery on a train bound to
[DJS Set-A (Pre.), 2019]
Varanasi from Haridwar. A can be inquired or tried
(A) attested by at least two witnesses, one
at any court in the course of that journey.
of which shall be a member of the family
60. Laying of “trap” is a part of arrested.
[Uttarakhand JS (Pre.), 2017] (B) attested by at least two witnesses, one
(A) Inquiry of which is a member of the family of the
(B) Trial person arrested and the other a gazette
(C) Investigation officer living in the locality where the
(D) None of these arrest is made.
Ans. (C) (C) arrested by at least one witness, who
Laying of “trap” is a part of investigation. is a member of the family of the person
61. A Chief Judicial Magistrate may pass a arrested or a respectable member of the
sentence of imprisonment:— locality where the arrest is made and
[HPJS (Pre.), 2015] shall be countersigned by the person
(A) not exceeding seven years arrested.
(B) exceeding seven years (D) as far as may be possible in the
(C) for life circumstances in which arrest is made
(D) not exceeding three years attested by at least one witness.
Ans. (A) Ans. (C)

170 Code of Criminal Procedure, 1973

Every police officer while making an arrest shall immediately taken before a Magistrate, who shall
(b) prepare a memorandum of arrest which shall make such order as in the circumstances of the
be— case seems proper.
(i) attested by at least one witness, who is a 66. The Criminal Law (Amendment) Act, 2013
member of the family of the person arrested or came into force on:—
a respectable member of the locality where the [Uttarakhand JS (Pre.), 2017]
arrest is made. [Section 41B(b)(i)] (A)19 March 2013
64. Under which section of Criminal Procedure (B)3 February 2013
Code, 1973 law of Service of Summon on (C)21 March 2013
government servant is provided? (D)31 March 2013
[UK APO (LAW), 2021] Ans. (B)
(A) Section 66 The Criminal Law (Amendment) Act, 2013 came
(B) Section 64 into force on 3rd February, 2013.
(C) Section 67 y Ordinance was promulgated by the President
(D) Section 63 of India, Pranab Mukherjee. [Born in 1935, died
Ans. (A) in 2020]
Section 66 of the Code deals with “Service on y First few amendments were made: In 1978,
Government servant”. 1980, 1983 1988, 1990 etc.
Where the person summoned is in the active
y Last few amendments were made: The Code
service of the Government, the Court issuing the
of Criminal Procedure (Amendment) Act, 2020,
summons shall ordinarily send it in duplicate
Code of Criminal Procedure (Amendment) Act,
to the head of the office in which such person
2018, Code of Criminal Procedure (Amendment)
is employed; and such head shall thereupon
Act, 2013 etc.
cause the summons to be served in the manner
provided by Section 62, and shall return it to the 67. Under Code of Criminal Procedure, 1973,
Court under his signature with the endorsement how many chapters and sections have been
required by that section. [Section 66(1)] incorporated?
[Uttarakhand JS (Pre.), 2017]
65. Which provision of the Cr.P.C. resembles
(A) 38 chapters, 486 sections
Habeas Corpus writ?
(B) 37 chapters, 484 sections
[HJS (Pre.) 2014; Uttar Pradesh (Pre.), 2018]
(C) 36 chapters, 484 sections
(A) Section 91
(D) 35 chapters, 486 sections
(B) Section 93
Ans. (B)
(C) Section 97
y 37 Chapters, 484 sections are there in Criminal
(D) Section 96
Procedure Code.
Ans. (C)
Section 97 resembles Habeas Corpus writ. y It divides the procedure to be followed for
If any District Magistrate, Sub-divisional administration of criminal justice into three
Magistrate or Magistrate of the first class has stages namely: investigation, inquiry and trail.
reason to believe that any person is confined The basic purpose of the Criminal Procedure
under such circumstances that the confinement Code, among other things, is to ensure a fair
amounts to an offence, he may issue a search- trial where none of the rights of the accused
warrant, and the person to whom such warrant is are compromised nor are they unjustifiably
directed may search for the person so confined; favoured.
and such search shall be made in accordance 68. Cognizable offence has been defined:—
therewith, and the person, if found, shall be [HJS (Pre.), 2010]

Code of Criminal Procedure, 1973 171

 (A) under Section 2(a) Section 2(x), warrant-case means a case
(B) under Section 2(c) relating to an offence punishable with death,
(C) under Section 2(i) imprisonment for life or imprisonment for a term
(D) under Section 2(k) exceeding two years.
Ans. (B) 71. Preventive action of Police has been
y Cognizable offence has been defined under discussed under
Section 2(c) of the Code of 1973. [HJS Pre, 2021]
y Section 2(c), “cognizable offence” means (A) Chapter X of Cr.P.C.
an offence for which, and “cognizable case” (B) Chapter XI of Cr.P.C.
means a case in which a police officer may, in (C) Chapter XII of Cr.P.C.
accordance with the First Schedule or under (D) No specific Chapter has been prescribed
any other law for the time being in force, arrest Ans. (B)
without warrant. CHAPTER XI of the Code deals with “PREVENTIVE
69. What is not true with regard to ‘Complaint’ ACTION OF THE POLICE”.
under Section 2(D) of Cr.P.C.? 72. Within how much time, an application for
[A.P.J.S Junior Division (Pre.), 2011] interim maintenance under Section 125 of
(A) It is made to Magistrate with a view to Criminal Procedure Code should be disposed
his taking action under the code of?
(B) It is an allegation made orally or in [Gujarat JS (Pre.), 2019]
writing (A) Sixty days from the date of the service
(C) That some person, whether known or of notice of the application to the
unknown has committed an offence defendant/opponent
(D) It includes a Police Report (B) Sixty days from the date of filing of the
Ans. (D) application
Complaint does not include a police report. (C) thirty days from the date of service
Complaint means any allegation made orally of notice of the application to the
or in writing to a Magistrate, with a view to his defendant/opponent
taking action under this Code, that some person, (D) ninety days from the date of service
whether known or unknown, has committed an of notice of the application to the
offence, but does not include a police report. defendant/opponent.
Explanation.—A report made by a police officer Ans. (A)
in a case which discloses, after investigation, the
An application for the monthly allowance for the
commission of a non-cognizable offence shall be interim maintenance and expenses of proceeding
deemed to be a complaint; and the police officer under the second proviso shall, as far as possible,
by whom such report is made shall be deemed to be disposed of within sixty days from the date of
be the complainant. the service of notice of the application to such
70. A warrant case does not mean:— person. [Section 125(1) (proviso)]
[HPJS (Pre.), 2018] 73. In relation to FIR lodged under Section 154 of
(A) an offence punishable with death Cr.P.C. which of the following statements is
(B) an offence punishable for a term not correct?
exceeding one year
[MPJS (Pre.), 2014]
(C) an offence punishable with life
(A) it is not a substantive evidence
imprisonment
(B) it merely marks the beginning of the
(D) an offence punishable with imprisonment
investigation
for a term exceeding two years
Ans. (B)

172 Code of Criminal Procedure, 1973

 (C) it cannot be used as a previous statement custody under the orders made by an Executive
for any purpose Magistrate under this sub-section, shall be taken
(D) the informant need not be an eye witness into account in computing the period specified
Ans. (C) in paragraph (a) of the proviso to sub-section (2):
y Information given in FIR can be used as a Provided that before the expiry of the period
previous statement for any purpose. aforesaid, the Executive Magistrate shall transmit
y FIR is not substantive evidence. to the nearest Judicial Magistrate the records of
the case together with a copy of the entries in the
y FIR is information marks the beginning of the
diary relating to the case which was transmitted
investigation
to him by the officer in charge of the police station
74. What is the maximum period an Executive or the police officer making the investigation, as
Magistrate may authorise the detention of an the case may be.
accused in custody?
75. An offence is committed outside India by a
[Jharkhand Judicial Services (Pre.), 2014] citizen of India such offence shall be inquired
(A) Not exceeding 24 hours or tried in India with the previous sanction
(B) Not exceeding 3 days of—
(C) Not exceeding 7 days
[MPJS Class-2 (Pre), 2013 (Shift - II)]
(D) Not exceeding 15 days
(A) Supreme Court
Ans. (C)
(B) State Government
An Executive Magistrate may authorise the
(C) Central Government
detention of an accused in custody for not
(D) Permission not needed
exceeding seven days.
Ans. (C)
Section 167(2A), Notwithstanding anything
Section 188, When an offence is committed
contained in sub-section (1) or sub-section (2),
outside India—
the officer in charge of the police station or the
(a) by a citizen of India, whether on the high
police officer making the investigation, if he is not
seas or elsewhere; or
below the rank of a sub-inspector, may, where a
(b) by a person, not being such citizen, on any
Judicial Magistrate is not available, transmit to
ship or aircraft registered in India, he may
the nearest Executive Magistrate, on whom the
be dealt with in respect of such offence as
powers of a Judicial Magistrate or Metropolitan
if it had been committed at any place within
Magistrate have been conferred, a copy of the
India at which he may be found:
entry in the diary hereinafter prescribed relating
to the case, and shall, at the same time, forward Provided that, notwithstanding anything in any of
the accused to such Executive Magistrate, and the preceding sections of this Chapter, no such
thereupon such Executive Magistrate, may, for offence shall be inquired into or tried in India
reasons to be recorded in writing, authorise the except with the previous sanction of the Central
detention of the accused person in such custody Government.
as he may think fit for a term not exceeding seven 76. Under Section 199 of Code of Criminal
days in the aggregate; and, on the expiry of the Procedure, 1973, in a prosecution for
period of detention so authorised, the accused defamation of the Vice-President of India,
person shall be released on bail except where an Sessions Court may take cognizance of such
order for further detention of the accused person offence without the case being committed to
has been made by a Magistrate competent to it, but only upon a complaint in writing made
make such order; and, where no order for such by ..............
further detention is made, the period during [HJS (Pre.), 2017]
which the accused person was detained in

Code of Criminal Procedure, 1973 173

 (A) The President of India 78. A is accused of an act which may amount
(B) Director General of Police to Criminal Breach of Trust or Cheating. He
(C) District-Magistrate is only charged with cheating but it appears
(D) Public Prosecutor that A has committed the offence of Criminal
(E) None of the above Breach of Trust. He may be:—
Ans. (D) [HPJS (Pre.), 2019]
Section 199(2), Notwithstanding anything (A) Acquitted from the charge of Criminal
contained in this Code, when any offence falling Breach of Trust
under Chapter XXI of the Indian Penal Code (45 of (B) Convicted to Cheating only, not for other
1860) is alleged to have been committed against (C) Convicted of Criminal Breach of Trust,
a person who, at the time of such commission, also
is the President of India, the Vice-President of (D) Discharged from the charge of Criminal
India, the Governor of a State, the Administrator Breach of Trust.
of a Union territory or a Minister of the Union or Ans. (C)
of a State or of a Union territory, or any other Section 221, (1) If a single act or series of acts
public servant employed in connection with the is of such a nature that it is doubtful which of
affairs of the Union or of a State in respect of his several offences the facts which can be proved
conduct in the discharge of his public functions will constitute, the accused may be charged with
a Court of Session may take cognizance of such having committed all or any of such offences, and
offence, without the case being committed to it, any number of such charges may be tried at once;
upon a complaint in writing made by the Public or he may be charged in the alternative with
Prosecutor. having committed some one of the said offences.
77. When can the provision of Section 210 of (2) If in such a case the accused is charged with
Criminal Procedure Code be invoked? one offence, and it appears in evidence that he
[Gujarat JS (Pre.), 2019] committed a different offence for which he might
(A) When there is a complaint, the police are have been charged under the provisions of sub-
also investigating the matter. section (1), he may be convicted of the offence
(B) When there is a complaint case but which he is shown to have committed, although
police is not investigating the matter he was not charged with it.
(C) When there is a complaint, the police 79. Under Code of Criminal Procedure, 1973 in a
have already completed the investigation warrant case instituted on police-report, the
and submitted a final report. trial begins when:—
(D) all of these [Uttarakhand JS (Pre.), 2015]
Ans. (A) (A) Charges are framed
Section 210(1), When in a case instituted otherwise (B) Accused appears
than on a police report (hereinafter referred to as (C) Witnesses are examined
a complaint case), it is made to appear to the (D) None of the above
Magistrate, during the course of the inquiry or trial Ans. (A)
held by him, that an investigation by the police In a warrant case instituted on police-report, the
is in progress in relation to the offence which is trial begins when charges are framed.
the subject-matter of the inquiry or trial held by
80. Compensation for accusation without
him, the Magistrate shall stay the proceedings
reasonable cause can be awarded by the
of such inquiry or trial and call for a report on
Magistrate:—
the matter from the police officer conducting the
[Maharashtra (Pre.), 2011]
investigation.
(A) Under Section 357(3) of Cr.P.C.

174 Code of Criminal Procedure, 1973

 (B) Under Section 250 of Cr.P.C. (a) any Chief Judicial Magistrate;
(C) Under Section 167(2) of Cr.P.C. (b) any Metropolitan Magistrate;
(D) Under Section 436-A of Cr.P.C.
(c) any Magistrate of the first class specially
Ans. (B)
empowered in this behalf by the High Court,
y Section 250 provides for compensation for
may, if he thinks fit, try in a summary way all
accusation without reasonable cause.
or any of the following offences:—
y Section 250(1), If, in any case instituted upon
(i) offences not punishable with death,
complaint or upon information given to a
imprisonment for life or imprisonment
police officer or to a Magistrate, one or more
for a term exceeding two years;
persons is or are accused before a Magistrate
(ii) theft, under Section 379, Section 380 or
of any offence triable by a Magistrate, and
Section 381 of the Indian Penal Code (45
the Magistrate by whom the case is heard
of 1860), where the value of the property
discharges or acquits all or any of the accused,
stolen does not exceed two thousand
and is of opinion that there was no reasonable
rupees;
ground for making the accusation against
them or any of them, the Magistrate may, (iii) receiving or retaining stolen property,
by his order of discharge or acquittal, if the under Section 411 of the Indian Penal
person upon whose complaint or information Code (45 of 1860), where the value of the
the accusation was made is present, call upon property does not exceed two thousand
him forthwith to show cause why he should rupees;
not pay compensation to such accused or (iv) assisting in the concealment or disposal
to each or any of such accused when there of stolen property, under Section 414
are more than one; or, if such person is not of the Indian Penal Code (45 of 1860),
present, direct the issue of a summons to him where the value of such property does
to appear and show cause as aforesaid. not exceed two thousand rupees;

81. Any Metropolitan Magistrate, may, if he (v) offences under Sections 454 and 456 of
thinks fit, try in a summary way the following the Indian Penal Code (45 of 1860);
offences under Section 260 of the Code of (vi) insult with intent to provoke a breach
Criminal Procedure:— of the peace, under Section 504, and
[DJS Set-A (Pre.), 2019] criminal intimidation punishable with
(A) theft, under Section 379, Section 380 imprisonment for a term which may
or Section 381 of the Indian Penal Code, extend to two years, or with fine, or with
where the value of the property stolen both, under Section 506 of the Indian
does not exceed two thousand rupees. Penal Code (45 of 1860);
(B) offences under Sections 454 and 456 of (vii) abetment of any of the foregoing
the Indian Penal Code. offences;
(C) receiving or retaining stolen property, (viii) an attempt to commit any of the
under Section 411 of the Indian Penal foregoing offences, when such attempt
Code where the value of the property is an offence;
does not exceed two thousand rupees.
(ix) any offence constituted by an act in
(D) All these
respect of which a complaint may be
Ans. (D)
made under Section 20 of the Cattle-
Section 260, Power to try summarily.—(1)
trespass Act, 1871 (1 of 1871).
Notwithstanding anything contained in this
Code— (2) When, in the course of a summary trial it appears
to the Magistrate that the nature of the case is

Code of Criminal Procedure, 1973 175

 such that it is undesirable to try it summarily, the (C) Section 300 of Cr.P.C.
Magistrate shall recall any witnesses who may (D) Section 327 of Cr.P.C.
have been examined and proceed to re-hear the Ans. (C)
case in the manner provided by this Code. y Section 300 is based on the doctrine of
82. Provisions of Chapter XXI-A Cr.P.C. are not ‘autrefois acquit’ and ‘autrefois convict’
applicable to cases where the final report y Autrefois Convict Means That the person has
discloses:— been previously convicted in respect of the
[DJS (Pre.), 2015] same offence.
(i) offences punishable for death y Autrefois Acquit Means That the person has
(ii) offences punishable for imprisonment of been acquitted on a same charge on which he
life is being prosecuted.
(iii) offences punishable for a term exceeding
85. Which of the following statements is correct
seven years’ imprisonment
with regard to the application of Section 313
(iv) offences punishable for a term exceeding
Cr.P.C.?
three years’ imprisonment
[DJS Set-A (Pre.), 2018-2019]
Which of the following is correct:
(A) The statement of the accused is recorded
(A) (i), (iii) & (iv)
on oath.
(B) (ii), (iii) & (iv)
(B) The section does not apply to an inquiry
(C) (i), (ii) & (iii)
but only to a trial.
(D) (i), (ii) & (iv)
(C) The court may permit filing of written
Ans. (C)
statements by the accused as sufficient
83. Rule autrefois acquit or autrefois convict is
compliance of Section 313 Cr.P.C.
contained:—
(D) All the above
[Jharkhand Judicial Services (Pre.) 2016; Ans. (C)
Jharkhand Judicial Services (Pre.), 2019] y No oath shall be administered to the accused
(A) Under Section 298 of Cr.P.C. when he is examined under sub-section (1).
(B) Under Section 300 of Cr.P.C. [Section 313(2)]
(C) Under Section 320 of Cr.P.C.
y Section 313 does apply to an inquiry and trial.
(D) Under Section 321 of Cr.P.C.
Ans. (B) y The court may permit filing of written
Rule autrefois acquit or autrefois convict is statements by the accused as sufficient
contained in Section 300. compliance of Section 313.
The two aspects of doctrine of jeopardy viz., 86. In which of the following sections of the
Autrefois convict and Autrefois acquit:— Code of Criminal Procedure is the provision
Autrefois Convict Means That the person has for compounding of offences provided?
been previously convicted in respect of the same [Chhattisgarh JS (Pre.), 2017]
offence. Autrefois Acquit Means that the person (A) Section 420
has been acquitted on a same charge on which (B) Section 320
he is being prosecuted. (C) Section 482
84. Which of the following Sections is based (D) Section 395
on the doctrine of ‘autrefois acquit’ and Ans. (B)
‘autrefois convict’? Provision for compounding of offences provided
[Jharkhand APO (Pre.), 2012] in Section 320.
(A) Section 289 of Cr.P.C.
(B) Section 295 of Cr.P.C.

176 Code of Criminal Procedure, 1973

87. Composition of an offence under Code of (d) take sufficient security for the appearance
Criminal Procedure, 1973 will result in............... of the accused before such Magistrate, or if
of the accused. the alleged offence is non-bailable and the
[HJS (Pre.), 2017] Court thinks it necessary so to do, send the
(A) acquittal accused in custody to such Magistrate; and
(B) discharge (e) bind over any person to appear and give
(C) compromise evidence before such Magistrate. [Section
(D) probation 340(1) of Cr.P.C.]
(e) None of the above
89. Which one of the following Sections of
Ans. (A)
Criminal Procedure Code, 1973 deals with the
y Composition of an offence under Section 320
language and contents of judgement?
will result in acquittal of the accused.
[Uttar Pradesh (Pre.), 2016]
y Section 320(8), The composition of an offence
(A) Section 353
under this section shall have the effect of
(B) Section 354
an acquittal of the accused with whom the
(C) Section 355
offence has been compounded.
(D) Section 356
88. __________ can proceed under Section 340 Ans. (B)
of the Code of Criminal Procedure, 1973 and Section 354 deals with the language and contents
hold a preliminary enquiry. of judgement.
[HJS Pre, 2021] 90. What is the maximum default sentence that
I Civil Court can be awarded in case of non-payment of
II. Revenue Court compensation under Section 358 of the Code
III. Criminal Court of Criminal Procedure, 1973:—
(A) I and II [Uttarakhand JS (Pre.), 2015]
(B) II and III (A) 60 days
(C) III and I (B) 30 days
(D) I, II and III (C) 90 days
Ans. (D) (D) 120 days
When, upon an application made to it in this Ans. (B)
behalf or otherwise, any Court is of opinion that Section 358(3), All compensation awarded under
it is expedient in the interests of Justice that an this section may be recovered as if it were a fine,
inquiry should be made into any offence referred and, if it cannot be so recovered, the person by
to in clause (b) of sub-section (1) of Section 195, whom it is payable shall be sentenced to simple
which appears to have been committed in or in imprisonment for such term not exceeding thirty
relation to a proceeding in that Court or, as the days as the Magistrate directs, unless such sum
case may be, in respect of a document produced is sooner paid.
or given in evidence in a proceeding in that Court,
91. Under Section 395 of the Code of Criminal
such Court may, after such preliminary inquiry, if
Procedure, which court can entertain a case
any, as it thinks necessary,—
under reference?
(a) record a finding to that effect;
[Chhattisgarh JS (Pre.), 2017]
(b) make a complaint thereof in writing; (A) Supreme Court
(c) send it to a Magistrate of the first class (B) Trial Court
having jurisdiction; (C) Session Court
(D) High Court
Ans. (D)

Code of Criminal Procedure, 1973 177

 y Section 395 deals with reference to the High (b) a sentence of imprisonment for life, for
Court. imprisonment for a term not exceeding
y Section 395(1), Where any Court is satisfied fourteen years or for fine;
that a case pending before it involves (c) a sentence of rigorous imprisonment, for
a question as to the validity of any Act, simple imprisonment for any term to which
Ordinance or Regulation or of any provision that person might have been sentenced, or
contained in an Act, Ordinance or Regulation, for fine;
the determination of which is necessary for (d) a sentence of simple imprisonment, for fine.
the disposal of the case, and is of opinion that
94. A Metropolitan Magistrate may release an
such Act, Ordinance, Regulation or provision
accused on bail in non-bailable offence
is invalid or inoperative, but has not been so
except in following case(s) if:—
declared by the High Court to which that Court
[DJS (Pre.), 2014]
is Subordinate or by the Supreme Court, the
(A) there are reasonable grounds for believing
Court shall state a case setting out its opinion
that he has been guilty of an offence
and the reasons therefor, and refer the same
punishable with death or imprisonment
for the decision of the High Court.
for life.
92. Commutation of a death sentence on a (B) There are reasonable grounds for
pregnant woman is provided under:— believing that he has been guilty of a
[HJS Pre, 2021] cognizable offence and he has been
(A) Section 413 of Cr.P.C. previously convicted of an offence
(B) Section 414 of Cr.P.C. punishable with imprisonment for seven
(C) Section 415 of Cr.P.C. years.
(D) Section 416 of Cr.P.C. (C) He had been previously convicted on
Ans. (D) two or more occasions of a cognizable
If a woman sentenced to death is found to be offence punishable with imprisonment
pregnant, the High Court shall commute the for three years.
sentence to imprisonment for life. [Section 416 (D) All of these
of Cr.P.C.] Ans. (D)
93. Appropriate Government may commute the Section 437(1), When any person accused of, or
sentence of an accused person under Code suspected of, the commission of any non-bailable
of Criminal Procedure, 1973 even without the offence is arrested or detained without warrant
consent of the accused under:— by an officer-in-charge of a police station or
[Uttarakhand JS (Pre.), 2017] appears or is brought before a Court other than
(A) Section 432 the High Court or Court of session, he may be
(B) Section 433 released on bail, but—
(C) Section 320 (i) such person shall not be so released if there
(D) Section 321 appear reasonable grounds for believing that
Ans. (B) he has been guilty of an offence punishable
Section 433, Power to commute sentence.— with death or imprisonment for life;
The appropriate Government may, without the (ii) such person shall not be so released if such
consent of the person sentenced, commute— offence is a cognizable offence and he had
(a) a sentence of death, for any other punishment been previously convicted of an offence
provided by the Indian Penal Code (45 of punishable with death, imprisonment for life
1860); or imprisonment for seven years or more,

178 Code of Criminal Procedure, 1973

 or he had been previously convicted on two y “Irregularities which do not vitiate proceedings”
or more occasions of a cognizable offence is provided in Section 460.
punishable with imprisonment for three y If any Magistrate not empowered by law to do
years or more but not less than seven years: any of the following things, namely:—
95. A Magistrate who released on bail an (a) to issue a search-warrant under Section
accused in a sessions case directed him to 94;
bind himself to appear before the Magistrate (b) to order, under Section 155, the police to
Court as well as the Sessions Court. The investigate an offence;
direction is:—
(c) to hold an inquest under Section 176;
[Kerala JS (Pre.), 2011]
(d) to issue process under Section 187, for
(A) only improper
the apprehension of a person within his
(B) only irregular
local jurisdiction who has committed
(C) legal
an offence outside the limits of such
(D) illegal
jurisdiction;
Ans. (C)
The direction is legal. (e) to take cognizance of an offence under
clause (a) or clause (b) of sub-section (1)
96. An order passed by a Magistrate under Section
of Section 190;
446 of the Code of Criminal Procedure 1973,
is appealable to:— (f) to make over a case under sub-section
[Uttarakhand JS (Pre.), 2015] (2) of Section 192;
(A) Session Judge (g) to tender a pardon under Section 306;
(B) District Magistrate (h) to recall a case and try it himself under
(C) High Court Section 410; or
(D) Supreme Court (i) to sell property under Section 458 or
Ans. (A) Section 459,
Section 449, Appeal from orders under Section
y erroneously in good faith does that thing, his
446.—All orders passed under Section 446 shall
proceedings shall not be set aside merely on
be appealable,—
the ground of his not being so empowered.
(i) in the case of an order made by a Magistrate,
to the Sessions Judge; 98. Following irregularities done by a Magistrate,
do not vitiate proceedings:—
(ii) in the case of an order made by a Court of
Session, to the Court to which an appeal lies [Karnataka CJ (Pre.), 2012]
from an order made by such Court. (A) to issue a search warrant under Section
94
97. “Irregularities which do not vitiate (B) to order, under Section 155, the police to
proceedings” is provided in which of the investigate an offence
following sections of the Criminal Procedure (C) none of the above
Code? (D) both (A) and (B)
[Uttarakhand JS (Pre.), 2019] Ans. (D)
(A) Section 461 Section 460, Irregularities which do not vitiate
(B) Section 460 proceedings.—If any Magistrate not empowered
(C) Section 462 by law to do any of the following things, namely:—
(D) Section 458 (a) to issue a search-warrant under Section 94;
Ans. (B)
(b) to order, under Section 155, the police to
investigate an offence.

Code of Criminal Procedure, 1973 179

 99. The period of limitation for taking cognizance Section 468, Bar to taking cognizance after lapse
of an offence punishable with imprisonment of the period of limitation—
of one years is:— (1) Except as otherwise provided elsewhere in
[Maharashtra JS (Pre.), 2019] this Code, no Court shall take cognizance of
(A) Six months an offence of the category specified in sub-
(B) One year section (2), after the expiry of the period of
(C) Two years limitation.
(D) Three years. (2) The period of limitation shall be—
Ans. (B)
(a) six months, if the offence is punishable
Section 468(2)(c), The period of limitation shall
with fine only;
be—three years, if the offence is punishable with
(b) one year, if the offence is punishable with
imprisonment for a term exceeding one year but
imprisonment for a term not exceeding
not exceeding three years.
one year;
100. Limitation period prescribed under Section
(c) three years, if the offence is punishable
468 of the Code of Criminal Procedure, 1973
with imprisonment for a term exceeding
is related to:—
one year but not exceeding three years.
[Uttarakhand JS (Pre.), 2017]
(A) completion of investigation (3) For the purposes of this section, the period of
(B) completion of trial limitation, in relation to offences which may
(C) cognizance of offence by the court be tried together, shall be determined with
(D) completion of inquiry reference to the offence which is punishable
Ans. (C) with the more severe punishment or, as the
Limitation period prescribed under Section 468 case may be, the most severe punishment.
of the Code of Criminal Procedure, 1973 is related
to cognizance of offence by the court.

Recent and Relevant Cases

Sukhpal Singh Khaira versus State of Punjab, 2022 SCC OnLine SC 1679; also see, Rajendra Singh
versus State of UP, (2007) 7 SCC 378
Point/s to note: Section 319; CrPC; summon; who can be summoned; additional accused.
Additional Accused
y Section 319(1) of Cr.P.C explains as to who/which type of person can be summoned as an additional
accused to face trial. The word “could be tried together with other accused” has been used to
identify the person who can be summoned and tried as an additional accused. Conclusion of main
trial during pendency of revision/appeal before the Higher Courts against Section 319 of Cr.P.C order
will not make the order inoperative/ineffective merely because the trial in which such order was
passed has been concluded.
y The Court has exercised the power under Section 319 of Cr.P.C for summoning additional accused
when the trial in respect of other absconding accused is ongoing/pending having been bifurcated
from the main trial. The trial of accused who were earlier absconding, is pending and some evidence
has come which necessitates the summoning of additional accused by the Court. When application
under Section 319 of Cr.P.C is decided simultaneously on the same day when trial is concluded, then
the Court below does not become functus officio and is competent to exercise power under Section
319 of Cr.P.C in view of Section 354 of Cr.P.C which expressly provides that an order on quantum of

180 Code of Criminal Procedure, 1973

 sentence is an integral part of the judgement and any judgement of conviction without such order
would be referred as incomplete.
y Power under Section 319 of the Code is conferred on the court to ensure that justice is done to the
society by bringing to book all those guilty of an offence. One of the aims and purposes of the criminal
justice system is to maintain social order. It is necessary in that context to ensure that no one who
appears to be guilty escapes a proper trial in relation to that guilt. There is also a duty to render
justice to the victim of the offence. It is in recognition of this that the Code has specifically conferred
a power on the court to proceed against others not arrayed as accused in the circumstances set out
by this section. It is a salutary power enabling the discharge of a court’s obligation to the society to
bring to book all those guilty of a crime.
—————
Sukhpal Singh Khaira versus State of Punjab, 2022 SCC OnLine SC 1679
Point/s to note: Section 319; CrPC; guidelines; summon; who can be summoned; additional accused.
Court answered the following questions:
I Whether the trial court has the power under Section 319 of Cr.P.C for summoning additional accused
when the trial with respect to other co-accused has ended and the judgement of conviction
rendered on the same date before pronouncing the summoning order?
II. The power under Section 319 of Cr.P.C is to be invoked and exercised before the pronouncement of the
order of sentence where there is a judgement of conviction of the accused. In the case of acquittal,
the power should be exercised before the order of acquittal is pronounced. Hence, the summoning
order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If
the order is passed on the same day, it will have to be examined on the facts and circumstances
of each case and if such summoning order is passed either after the order of acquittal or imposing
sentence in the case of conviction, the same will not be sustainable.
III. Whether the trial court has the power under Section 319 of the Cr.P.C for summoning additional
accused when the trial in respect of certain other absconding accused (whose presence is
subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
IV. The trial court has the power to summon additional accused when the trial proceeds in respect of
the absconding accused after securing his presence, subject to the evidence recorded in the split
up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the
evidence recorded in the main concluded trial cannot be the basis of the summoning order if such
power has not been exercised in the main trial till its conclusion.
—————
Sukhpal Singh Khaira versus State of Punjab, 2022 SCC OnLine SC 1679
Point/s to note: Section 319; guidelines; competent court.
What are the guidelines that the competent court must follow while exercising power under Section
319 Cr.P.C?
(i) If the competent court finds evidence or if application under Section 319 of Cr.P.C is filed regarding
involvement of any other person in committing the offence based on evidence recorded at any
stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at
that stage.
(ii) The Court shall thereupon first decide the need or otherwise to summon the additional accused
and pass orders thereon.

Code of Criminal Procedure, 1973 181

 (iii) If the decision of the court is to exercise the power under Section 319 of Cr.P.C and summon the
accused, such summoning order shall be passed before proceeding further with the trial in the
main case.
(iv) If the summoning order of additional accused is passed, depending on the stage at which it is
passed, the Court shall also apply its mind to the fact as to whether such summoned accused is
to be tried along with the other accused or separately.
(v) If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence
of the summoned accused.
(vi) If the decision is that the summoned accused can be tried separately, on such order being made,
there will be no impediment for the Court to continue and conclude the trial against the accused
who were being proceeded with.
(vii) If the proceeding paused as in (i) above is in a case where the accused who were tried are to be
acquitted and the decision is that the summoned accused can be tried afresh separately, there
will be no impediment to pass the judgement of acquittal in the main case.
(viii) If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up
(bifurcated) case, the power under Section 319 of Cr.P.C can be invoked or exercised only if there
is evidence to that effect, pointing to the involvement of the additional accused to be summoned
in the split up (bifurcated) trial.
(ix) If, after arguments are heard and the case is reserved for judgement the occasion arises for the
Court to invoke and exercise the power under Section 319 of Cr.P.C, the appropriate course for the
court is to set it down for rehearing.
(x) On setting it down for rehearing, the above laid down procedure to decide about summoning;
holding of joint trial or otherwise shall be decided and proceeded with accordingly.
(xi) Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint
trial the trial shall be conducted afresh and de novo proceedings be held.
(xii) If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused
as indicated earlier.
—————
TP Gopalakrishnan versus State of Kerala, 2022 LiveLaw (SC) 1039
Point/s to note: Section 300; rule of double jeopardy; order of acquittal or conviction; a person cannot
be tried a second time.
A person cannot be tried a second time for an offence which is involved in an offence with which he
was previously charged.
y Section 300 of the Cr.P.C. embodies the general rule which affirms the validity of the pleas of
autrefois acquit i.e., previously acquitted and autrefois convict i.e., previously convicted. Sub-section
(1) of Section 300 lays down the rule of double jeopardy and sub-sections (2) to (5) deal with the
exceptions. Accordingly, so long as an order of acquittal or conviction by a court of competent
jurisdiction remains in force, the person cannot be tried for the same offence for which he was tried
earlier or for any other offence arising from the same fact situation, except the cases dealt in with
under sub-sections (2) to (5) of the section.
y Section 300 of the Cr.P.C. is based on the maxim nemo debet bis vexari, si costest curiae quod sit pro
una et eadem causa which means that a person cannot be tried a second time for an offence which
is involved in an offence with which he was previously charged.

182 Code of Criminal Procedure, 1973

y The whole basis for this provision is that the first trial should have been before a court of competent
jurisdiction. There must have been a trial of the accused, that is to say, that there should have been
a hearing and determination or adjudication of the case on merits. Where the accused has not been
tried and as such convicted or acquitted, Section 300(1) shall not be applicable. Section 300 of the
Cr.P.C bars the trial of a person not only for the same offence but also for any other offence on the
same facts.
y Section 300 of the CrPC places a bar wherein, a person who has already been tried by a Court of
competent jurisdiction for an offence arising out of the same facts, and has either been acquitted or
convicted of such offence cannot be tried again for the same offence as well as on the same facts
for any other offence as long as such acquittal or conviction remains in force.
—————
Abu Salem versus State of Maharashtra, 2022 LiveLaw (SC) 578: 2022 SCC OnLine SC 852
Point/s to note: Section 428; accused; remainder of the sentence; prisoner; sentence of imprisonment.
Period of detention undergone by the accused to be set off against the sentence or imprisonment
y As per Section 428 of the Cr.P.C., an accused person is entitled to set off for the period of detention
undergone by him during any investigation or inquiry and such period would be set off against the
remainder of the sentence.
y The word “term” u/s 428 of Cr.P.C. implies a concept of ascertainability, or conveys a sense of
certainty that is contrary to the letter of law and hence the period of detention undergone by the
accused as undertrial prisoners shall be set off against the sentence of life imprisonment imposed
on them.
y Section 428 of the Cr.P.C. applies to a specified term, and not the whole life of the accused as there
is no purpose of setting off a few years from the punishment of life imprisonment.
y To secure the benefit of Section 428 of the Cr.P.C., the prisoner should show that he had been
detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on
convicted and sentenced. The Court also held that an accused cannot claim a double benefit under
Section 428 of the Cr.P.C., i.e., the same period being counted as part of the period of imprisonment
imposed for committing the former offence and also being set off against the period of imprisonment
imposed for committing the latter offence as well.
—————
Jai Prakash Tiwari versus State of Madhya Pradesh, 2022 LiveLaw (SC) 658; also see, Parminder Kaur
versus State of Punjab, (2020) 8 SCC 811
Point/s to note: Section 313; statutory right; constitutional right; reasonable opportunity.
The purpose of Section 313
y Section 313 Cr.P.C. confers a valuable right upon an accused to establish his innocence and can well
be considered beyond a statutory right, as a constitutional right to a fair trial under Article 21 of the
Constitution.
y The object of Section 313 of the Code is to establish a direct dialogue between the court and the
accused. The purpose of Section 313 Cr.P.C. is to provide the accused a reasonable opportunity to
explain the adverse circumstances which have emerged against him during the course of trial. A
reasonable opportunity entails putting all the adverse evidence in the form of questions so as to give
an opportunity to the accused to articulate his defence and give his explanation.

Code of Criminal Procedure, 1973 183

 y If all the circumstances are bundled together and a single opportunity is provided to the accused to
explain himself, he may not be able to put forth a rational and intelligible explanation. Such exercises
which defeat fair opportunity are nothing but empty formality. Non-fulfilment of the true spirit of
Section 313 may ultimately cause grave prejudice to the accused and the Court may not have the
benefit of all the necessary facts and circumstances to arrive at a fair conclusion.
y “Once a plausible version has been put forth in defence at the Section 313 Cr.P.C examination stage,
then it is for the prosecution to negate such defence plea”.
—————
Jayaben versus Tejas Kanubhai Zala, 2022 LiveLaw (SC) 29; 2022 SCC OnLine SC 24
Point/s to note: Section 25A; post of Director of Prosecution; administration of justice in criminal
matters.
The Post of Director of Prosecution
The post of Director of Prosecution is a very important post in so far as the administration of justice in
criminal matters is concerned. It is the duty of the Director of Prosecution to make a prompt decision.
Given that crimes are treated as a wrong against the society as a whole, the role of the Director of
Prosecution in the administration of justice is crucial. He is appointed by the State Government in
exercise of powers under Section 25A of the Code of Criminal Procedure. That his crucial role is evident
from conditions such as in Section 25A(2) of the Code, which stipulates a minimum legal experience
of not less than ten years for a person to be eligible to be Directorate of Prosecution and that such an
appointment shall be made with the concurrence of the Chief Justice of the High Court.
—————
Manoj Kumar Khokhar versus State of Rajasthan, 2022 LiveLaw (SC) 55
Point/s to note: bail; Section 439; grant of bail; reasons to record before granting the bail;
Grant of Bail under Section 439
y While elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits
of the case may not be undertaken by the court considering a bail application, an order of reasoning
or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the
informant has a right to assail the order before a higher forum.
y The grant of bail is a matter which implicates the liberty of the Accused, the interest of the State and
the victims of crime in the proper administration of criminal justice. It is a well settled principle that
in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions
Court deciding an application Under Section 439 of the Code of Criminal Procedure would not launch
upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These
observations while adjudicating upon bail would also not be binding on the outcome of the trial. But
the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief
as they may be, for the purpose of deciding whether or not to grant bail.
y Grant of bail under Section 439 of the Code of Criminal Procedure is a matter involving the exercise
of judicial discretion. Judicial discretion in granting or refusing bail-as in the case of any other
discretion which is vested in a court as a judicial institution-is not unstructured. The duty to record
reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is
exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought
process underlying the order is subject to scrutiny and that it meets objective standards of reason

184 Code of Criminal Procedure, 1973

 and justice. [Ramesh Bhavan Rathod versus Vishanbhai Hirabhai Makwana Makwana(Koli), (2021) 6
SCC 230]
y When bail has been granted to an accused, the State may, if new circumstances have arisen following
the grant of such bail, approach the High Court seeking cancellation of bail under Section 439(2) of
the Cr.P.C. However, if no new circumstances have cropped up since the grant of bail, the State may
prefer an appeal against the order granting bail, on the ground that the same is perverse or illegal
or has been arrived at by ignoring material aspects which establish a prima facie case against the
accused. [Gurcharan Singh versus State (Delhi Admn.), 1978 Cri LJ 129]
—————
Joseph Stephen versus Santhanasamy, 2022 LiveLaw (SC) 83: 2022 SCC OnLine SC 90
Point/s to note: Section 401; revisional jurisdiction; high court; remit the matter; first appellate court.
High Court in exercise of the revisional jurisdiction under Section 401
y Sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal
into one of conviction. Though and as observed hereinabove, the High Court has revisional power
to examine whether there is manifest error of law or procedure etc., however, after giving its own
findings on the findings recorded by the court acquitting the accused and after setting aside the
order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate
Court, as the case may be.
y If the order of acquittal has been passed by the trial Court, the High Court may remit the matter
to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first
appellate court, in that case, the High Court has two options available, (i) to remit the matter to the
first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial
Court for retrial. [K Chinnaswamy Reddy versus State of Andhra Pradesh, AIR 1962 SC 1788]
y Power to be exercised by the High Court under sub-section (5) of Section 401, the High Court
may treat the application for revision as petition of appeal and deal with the same accordingly is
concerned, firstly the High Court has to pass a judicial order to treat the application for revision as
petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section
401 Cr.P.C. provides that if the High Court is satisfied that such revision application was made under
the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice to
do so. While treating the application for revision as a petition of appeal and dealing with the same
accordingly, the High Court has to record the satisfaction as provided under sub-section (5) of Section
401 Cr.P.C. Therefore, where under the Cr.P.C. an appeal lies, but an application for revision has been
made to the High Court by any person, the High Court has jurisdiction to treat the application for
revision as a petition of appeal and deal with the same accordingly as per sub-section (5) of Section
401 Cr.P.C., however, subject to the High Court being satisfied that such an application was made
under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of
justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal
order, to treat the application for revision as a petition of appeal and deal with the same accordingly.
y While exercising the powers under sub-section (5) to Section 401 Cr.P.C. to treat the revision
application as a petition of appeal, the High Court is required to pass a judicial order. However,
considering the fact that even otherwise being victims they are having the statutory right of appeal
as per proviso to Section 372 Cr.P.C., we deem it fit and proper to remit the matter to the High Court
to treat the revision applications as petition of appeals under Section 372 Cr.P.C. and to decide the
same in accordance with law and on their own merits. The same would be in the interests of all,

Code of Criminal Procedure, 1973 185

 namely, the victims as well as the accused, as the appellate Court would have a wider scope and
jurisdiction as an appellate Court, rather than the revisional court.
—————
Centrum Financial Services versus State of NCT of Delhi, 2022 LiveLaw (SC) 103
Point/s to note: Section 439; bail; jurisdiction to grant bail; application for grant of bail.
Jurisdiction to Grant Bail
y As per the law laid down by this Court where a Court while considering an application for bail fails
to consider the relevant factors, an Appellate Court may justifiably set aside the order granting bail.
Appellate Court is thus required to consider whether the order granting bail suffers from a non-
application of mind or a prima facie view from the evidence available on record.
y 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. [Prahlad Singh Bhati versus NCT
of Delhi, (2001) 4 SCC 280]
y It is a well-settled principle of law that while dealing with an application for grant of bail, it is the
duty of the Court to take into consideration certain factors and they basically are:
(i) the nature of accusation and the severity of punishment in cases of conviction and the nature
of supporting evidence,
(ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the
complainant, and
(iii) prima facie satisfaction of the Court in support of the charge. [Chaman Lal versus State of UP,
(2004) 7 SCC 525 and Neeru Yadav versus State of UP, (2016) 15 SCC 422]
While granting bail, the relevant considerations are:
(i) nature of seriousness of the offence;
(ii) character of the evidence and circumstances which are peculiar to the accused; and
(iii) likelihood of the accused fleeing from justice;
(iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and
(v) likelihood of his tampering. [Anil Kumar versus State (NCT of Delhi), (2018) 12 SCC 129]
—————
Serious Fraud Investigation Office versus Rahul Modi, 2022 SCC OnLine SC 153
Point/s to note: right to claim bail; default bail
Scheme of Cr.P.C: Default Bail
y Whether an accused is entitled for statutory bail under Section 167(2), Cr.P.C on the ground that
cognizance has not been taken before the expiry of 60 days or 90 days, as the case may be, from
the date of remand.
y The filing of the charge-sheet is sufficient compliance with the provisions of proviso (a) to Section
167(2), Cr.P.C and that taking of cognizance is not material to Section 167. The scheme of Cr.P.C is such
that once the investigation stage is completed, the court proceeds to the next stage, which is the
taking of cognizance and trial. During the period of investigation, the accused is under the custody
of the Magistrate before whom he or she is first produced, with such Magistrate being vested with
power to remand the accused to police custody and/or judicial custody, up to a maximum period as
prescribed under Section 167(2).

186 Code of Criminal Procedure, 1973

y The indefeasible right of an accused to seek statutory bail under Section 167(2), Cr.P.C arises only
if the charge-sheet has not been filed before the expiry of the statutory period. An accused cannot
demand release on default bail under Section 167(2) on the ground that cognizance has not been
taken before the expiry of 60 days. Non-filing of the charge-sheet within the statutory period is the
ground for availing the indefeasible right to claim bail under Section 167(2), Cr.P.C.
—————
Babu Venkatesh versus State of Karnataka, 2022 SCC OnLine SC 200
Point/s to note: Section 156; magistrate; applications under Section 156(3); affidavit.
y There has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section
156(3). Both the aspects should be clearly spelt out in the application and necessary documents to
that effect shall be filed. The warrant for giving a direction that an application under Section 156(3)
be supported by an affidavit is so that the person making the application should be conscious and
also endeavour to see that no false affidavit is made. It is because once an affidavit is found to
be false, he will be liable for prosecution in accordance with law. This will deter him to casually
invoke the authority of the Magistrate under Section 156(3). [Priyanka Srivastava versus State of Uttar
Pradesh, (2015) 6 SCC 287]
y Applications under Section 156(3) of Cr.P.C. are to be supported by an affidavit duly sworn by the
complainant who seeks the invocation of the jurisdiction of the Magistrate.
y In appropriate cases, the learned Magistrate would be well advised to verify the truth and also verify
the veracity of the allegations. The court has noted that, applications under Section 156(3) of the
Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons.
y Prior to the filing of a petition under Section 156(3) of the Cr.P.C., there have to be applications under
Section 154(1) and 154(3) of the Cr.P.C. This court emphasises the necessity to file an affidavit so that
the persons making the application should be conscious and not make false affidavits. With such
a requirement, the persons would be deterred from causally invoking authority of the Magistrate,
under Section 156(3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would
be liable for prosecution in accordance with law.
—————
Luckose Zachariah @ Zak Nedumchira Luke versus Joseph Joseph, 2022 LiveLaw (SC) 230
Point/s to note: Section 173; further investigation; initial report.
Further Investigation
y The initial report under Section 173(2) Cr.P.C which was submitted before the competent court after
investigation found that prima facie the appellants were involved in the commission of the offences
alleged. The subsequent report under Section 173(8) however has come to the conclusion that the
proceedings were liable to be dropped since prima facie no case involving the commission of the
offences has been established.
y A further investigation conducted under the orders of the court or by the police on its own accord
would lead to the filing of a supplementary report. The supplementary report, the Court noted, would
have to be dealt with “as part of the primary report” in view of the provisions of sub-sections 3 to 6
of Section 173.
y In terms of sub-section 8 of Section 173, in the event of a further investigation, the report has to
be forwarded to the Magistrate upon which, the provisions of sub-sections (2) to (6) shall (as far as

Code of Criminal Procedure, 1973 187

 may be) apply in relation to such report or reports as they apply in relation to a report forwarded in
sub-section (2).
y It is necessary for the Magistrate to have due regard to both the reports, the initial report which
was submitted under Section 173(2) as well as the supplementary report which was submitted after
further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to
take a considered view in accordance with law as to whether there is ground for presuming that the
persons named as accused have committed an offence.
—————
Sartaj Khan versus State of Uttarakhand, 2022 LiveLaw (SC) 321
Point/s to note: Section 188; offence is committed outside India; scope of Section 188.
Scope of Section 188
y In terms of Section 188, even if an offence is committed outside India, (a) by a citizen whether on the
high seas or anywhere else or (b) by a non-citizen on a ship or aircraft registered in India, the offence
can still be tried in India provided the conditions mentioned in said Section are satisfied.
y Section 188 of the Code gets attracted when the entirety of the offence is committed outside India;
and the grant of sanction would enable such offence to be enquired into or tried in India.
y Here in this case a part of the offence was committed on the soil of this country and as such going by
the normal principles the offence could be looked into and tried by Indian courts. Since the offence
was not committed in its entirety, outside India, the matter would not come within the scope of
Section 188 of the Code and there was no necessity of any sanction as mandated by the provision
to Section 188.
y Language of Section 188 states, When an offence is committed outside India—(a) by a citizen of
India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any
ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been
committed at any place within India at which he may be found.
—————
Sagar versus State of UP, (2022) 6 SCC 389
Point/s to note: Section 319; CrPC; scope and ambit of Section 319; Power under Section 319.
Scope and Ambit of Section 319
y The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary
and extraordinary power which should be exercised sparingly and only in those cases where the
circumstances of the case so warrant and the crucial test as noticed above has to be applied is
one which is more than prima facie case as exercised at the time of framing of charge, but short of
satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.
y Power under Section 319 Cr.P.C is a discretionary and an extraordinary power. It is to be exercised
sparingly and only in those cases where the circumstances of the case so warrant. It is not to be
exercised because the Magistrate or the Sessions Judge is of the opinion that some other person
may also be guilty of committing that offence. Only where strong and cogent evidence occurs against
a person from the evidence led before the court that such power should be exercised and not in
a casual and cavalier manner. In Section 319 Cr.P.C the purpose of providing if “it appears from the
evidence that any person not being the accused has committed any offence” is clear from the words
“for which such person could be tried together with the accused”. The words used are not “for which

188 Code of Criminal Procedure, 1973

 such a person could be convicted”. There is, therefore, no scope for the court acting under Section
319 Cr.P.C to form any opinion as to the guilt of the accused. [Hardeep Singh versus State of Punjab
and others, (2014) 3 SCC 92]
—————
Jameel Ahmad versus Mohammed Umair Mohammad Haroon, 2022 LiveLaw (SC) 222
Point/s to note: bail; Section 438; Section 439; grant of bail; rejection of bail; protection of individual
liberty.
Grant of Bail
y Grant of bail, though a discretionary order, requires such discretion to be exercised in a judicious
manner and on the application of certain settled parameters. More heinous the crime, greater is the
chance of rejection of bail, though the exercise also depends on the factual matrix of the matter.
y While accepting that the release of bail touches upon the liberty of an individual, observes that the
Supreme Court can interfere when the discretion exercised to grant bail is without due application
of mind or in contravention to the directions and principles to be applied for the grant of bail. The
Court, amongst others, must consider the prima facie view of whether the accused has committed
the offence, nature of the offence, gravity, likelihood of the accused obstructing in any manner or
evading the process of justice. Grant of bail draws an appropriate balance between public interest
in the administration of justice and protection of individual liberty in a criminal case. The prima facie
examination is on the basis of analysis of the record, and should not be confused with examination
in detail of the evidence on record to come to a conclusive finding. [Mahipal versus Rajesh Kumar @
Polia, 2020 (2) SCC 118]
—————
Jagjeet Singh versus Ashish Mishra @ Monu, 2022 SCC OnLine SC 453
Point/s to note: Victim under Section 2; victim’s right; Section 439; bail.
Victim’s Right to be Heard
y Bail under Cr.P.C: Power to grant bail under Section 439 of Cr.P.C., is one of wide amplitude. A High
Court or a Sessions Court, as the case may be, is bestowed with considerable discretion while
deciding an application for bail. But, as has been held by this Court on multiple occasions, this
discretion is not unfettered. On the contrary, the High Court or the Sessions Court must grant bail
after the application of a judicial mind, following well established principles, and not in a cryptic or
mechanical manner.
y It cannot be gainsaid that the right of a victim under the amended Cr.P.C. are substantive, enforceable,
and are another facet of human rights. The victim’s right cannot be termed or construed restrictively
like a brutum fulmen. It was reiterated that these rights are totally independent, incomparable, and
are not accessory or auxiliary to those of the State under the Cr.P.C. The presence of ‘State’ in the
proceedings, therefore, does not tantamount to according a hearing to a ‘victim’ of the crime.
y Victim under Cr.P.C: A ‘victim’ within the meaning of Cr.P.C. cannot be asked to await the commencement
of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to
be heard at every step post the occurrence of an offence. Such a ‘victim’ has unbridled participatory
rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.
We may hasten to clarify that ‘victim’ and ‘complainant/informant’ are two distinct connotations in
criminal jurisprudence. It is not always necessary that the complainant/informant is also a ‘victim’,

Code of Criminal Procedure, 1973 189

 for even a stranger to the act of crime can be an ‘informant’, and similarly, a ‘victim’ need not be the
complainant or informant of a felony.
—————
Ram Chander versus State of Chhattisgarh, 2022 SCC OnLine SC 500
Point/s to note: Section 432.
y The power to suspend or remit any sentence will have to be considered and ordered with much more
care and caution, in particular the interest of the public at large. The exercise of power under Section
432(1) should always be based on an application of the person concerned as provided under Section
432(2) and after duly following the procedure prescribed under Section 432(2).
y The purpose of the procedural safeguard under Section 432(2) of the Cr.P.C would stand defeated if
the opinion of the presiding judge becomes just another factor that may be taken into consideration
by the government while deciding the application for remission. It is possible then that the procedure
under Section 432(2) would become a mere formality.
y The State Government is empowered under Section 432 of the Code of Criminal Procedure to suspend
or remit sentences. Sub-section (2) of Section 432 provides that the appropriate government may take
the opinion of the presiding judge of the court before or by which the person making an application
for remission has been convicted on whether the application should be allowed or rejected, together
with the reasons for such opinion.
y The opinion is in the teeth of the provisions of Section 432(2) of the Cr.P.C which require that the
presiding judge’s opinion must be accompanied by reasons. An opinion accompanied by inadequate
reasoning would not satisfy the requirements of Section 432(2) of the Cr.P.C. Further, it will not serve
the purpose for which the exercise under Section 432(2) is to be undertaken, which is to enable the
executive to make an informed decision taking into consideration all the relevant factors.
—————

Practice Questions
1. Write a short note on Conditional order 5. Write a detailed note about the procedure
for removal of nuisance under the Code of given in the Code of Criminal Procedure, 1973,
Criminal Procedure, 1973. [Rajasthan Judicial when investigation cannot be completed
Services Examination, 2016] in 24 hours. [Rajasthan Judicial Services
2. Write short notes on (i) Cognizable and non- Examination, 2015]
cognizable offences and (ii) Bail in non- 6. What do you understand about “Local
bailable offences. [Uttar Pradesh Judicial Jurisdiction”? [Rajasthan Judicial Services
Services Examination, 2015] Examination, 2015]
7. When an accused can be charged by a
3. Are the provisions of Section 154(1) of Cr.P.C.
Magistrate? [Rajasthan Judicial Services
mandatory? Give reasons for our answer and
Examination, 2015]
cite the relevant case law. [Haryana Judicial
8. How to exercise the power of arrest? Explain
Services Examination, 2015]
duty of Judicial Magistrate in exercise of
4. Discuss the provisions related to
power under Section 167 Cr.P.C? [Madhya
maintenance of wife, children and parents
Pradesh Judicial Services Examination, 2015]
under the Code of Criminal Procedure. [Uttar
9. What is “plea bargaining”? Discuss its scope
Pradesh Judicial Services Examination, 2015]
and application. [Madhya Pradesh Judicial
Services Examination, 2015]

190 Code of Criminal Procedure, 1973

10. Write a short note on the Tender of 20. Write a short note on Inherent powers under
Pardon. [Madhya Pradesh Judicial Services the Code. [Madhya Pradesh Judicial Services
Examination, 2014] Examination, 2009 and 2010]
11. How and when a magistrate can set aside an 21. “Person once convicted or acquitted, cannot
ex parte order passed while exercising powers be tried again for the same facts for the
under Section 126 of Cr.P.C? [Rajasthan same offence”. Elucidate. [Haryana Judicial
Judicial Services Examination, 2014-2015] Services Examination, 2009]
12. What are the contents of charge? What 22. Write a short note on Search warrant and
particulars as to time, place and person production warrant. [Delhi Judicial Services
should be given in the charge? Can the Court Examination, 2008]
alter a charge once framed? [Rajasthan 23. Write a short note on Police remand and
Judicial Services Examination, 2014-2015] judicial remand. [Delhi Judicial Services
13. Write a short note on the Right of the married Examination, 2008]
daughter to claim maintenance from the 24. Write a short note on the procedure to be
father. [Delhi Judicial Services Examination, followed for recording the confession of an
2014] accused under Section 164 of Cr.P.C? [Delhi
14. What is the joinder of charges? What persons Judicial Services Examination, 2005]
can be charged jointly? Explain. [Madhya 25. Briefly discussed, can an accused invite
Pradesh Judicial Services Examination, 2014] Section 91, Cr.P.C. to bring on record some
15. Write a short note on Judicial Proceeding. documents before arguments on charge?
[Uttar Pradesh Judicial Services Examination, [Delhi Judicial Services Examination, 2000]
2012] 26. What is the First Information Report? What is
16. How is the summon served by a government its evidentiary value? [Uttar Pradesh Judicial
servant? [Uttar Pradesh Judicial Services Services Examination, 2000]
Examination, 2012] 27. Which courts are competent to grant
17. When can a police arrest a person without anticipatory bail? [Madhya Pradesh Judicial
a warrant? [Bihar and Jharkhand Judicial Services Examination, 1996]
Services Examination, 2011] 28. Which court can exercise inherent powers
18. What is the limitation period for taking under Section 482 Cr.P.C? [Rajasthan Judicial
cognizance of offence? [Rajasthan Judicial Services Examination, 1994]
Services Examination, 2011] 29. When bail can be taken in non-bailable
19. When can a magistrate cancel the order of offences? [Rajasthan Judicial Services
maintenance to wife? [Bihar and Jharkhand Examination, 1991]
Judicial Services Examination, 2011] 30. State the importance of F.I.R. [Rajasthan
Judicial Services Examination, 1991]

Solved Questions
Q. What is the First Information Report? What is its evidentiary value? [Uttar Pradesh Judicial Services
Examination, 2000]
Ans. The Term ‘F.I.R or First Information Report’ is not defined in the Code. The First Information
Report is the document that initiates criminal proceedings to punish the guilty. However, Section 154
of Cr.P.C. provides for the recording of the first information. Sub-section (1) of Section 154 provides
that every information relating to the commission of a cognizable offence if given orally, to an officer

Code of Criminal Procedure, 1973 191

 in-charge of a police station shall be reduced in writing by him or under his directions. The provision is
mandatory. The use of the word “shall ‘’ by the legislation is indicative of the statutory intent. In case
such information is given in writing or is reduced in writing on being given orally, it is required to be
signed by the persons giving it. It is further provided that the substance of commission of a cognizable
offence as given in writing or reduced to writing “shall ‘’ be entered in a book to be kept by such officer
in such form as the State Government may prescribe on this behalf.
What is called the first information is that which is referred to in Section 154 of Cr.P.C. “Every information
relating to the commission of a cognizable offence if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his direction, and be read over to the informant;
and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed
by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer
in such form as the State Government may prescribe in this behalf.” First information report (FIR) has to
be prepared and it shall be forwarded to the magistrate who is empowered to take cognizance of such
offence upon such report. The officer in charge of a police station is not obliged to prepare FIR on any
nebulous information received from somebody who does not disclose any authentic knowledge about
commission of the cognizable offence. It is open to the officer-in-charge to collect more information
containing details about the occurrence, if available, so that he can consider whether a cognizable
offence has been committed warranting investigation thereto.
Evidentiary value of FIR
y FIR is not a substantive piece of evidence.
y FIR can be used only as a previous statement for the purpose of contemplating Section 157 or
Section 145 of the Evidence Act, that is for corroborating or contradicting its maker and not of other
witnesses.
y The contents of the F.I.R. cannot be used for any purpose to base the conviction save and except in
a situation where the F.I.R. is a statement as contemplated under Section 32 of the Evidence Act.
y The value of FIR can vary upon as it is based on information given either by a complainant or a
stranger or any other person.
Purpose of registration of an FIR is manifold as follows:—
(i) To reduce the substance of information disclosing commission of a cognizable offence, if given
orally, into writing;
(ii) if given in writing to have it signed by the complainant;
(iii) to maintain record of receipt of information as regards commission of cognizable offences;
(iv) to initiate investigation on receipt of information as regards commission of cognizable offence;
(v) to inform the Magistrate forthwith of the factum of the information received.
Q. Which court can exercise inherent powers under Section 482 Cr.P.C? [Rajasthan Judicial Services
Examination, 1994]
Ans. Section 482 of the Code of Criminal Procedure deals with “Inherent powers”, it states that “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.”
‘Inherent powers’
‘Inherent powers’ can be exercised by the High Court. ‘Inherent power’ is to be used only in cases
where there is an abuse of the process of the Court or where interference is absolutely necessary

192 Code of Criminal Procedure, 1973

for securing the ends of justice. The inherent power must be exercised very sparingly as cases which
require interference would be few and far between. The most common case where inherent jurisdiction
is generally exercised is where criminal proceedings are required to be quashed because they are
initiated illegally, vexatiously or without jurisdiction. It must be remembered that the inherent power
is not to be resorted to if there is a specific provision in the Code or any other enactment for redress
of the grievance of the aggrieved party. This power should not be exercised against an express bar of
law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised
as against an express bar in some other enactment.
The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and
to secure ends of justice. Such power cannot be exercised to do something which is expressly barred
under the Code. Section 482 of the Code starts with the words “Nothing in this Code”. Thus the inherent
jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even
when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code.

“Inherent powers can be exercised with utmost-care and extra-caution”

No statutory bar under the code, which can affect the inherent power of this Court under Section 482.
Powers given u/s 482 of the Code is to be exercised Ex-Debito Justitiae to prevent an abuse of process
of Court. There can neither be an exhaustive list nor the defined parameters to enable a High Court to
invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each
case. The power under Section 482 of the Code has no limits. However, the High Court will exercise it
sparingly and with utmost care and caution. The exercise of power has to be with circumspection and
restraint. The Court is a vital and an extraordinarily effective instrument to maintain and control social
order. The Courts play a role of paramount importance in achieving peace, harmony and ever-lasting
congeniality in society. Resolution of a dispute by way of a compromise between two warring groups,
therefore, should attract the immediate and prompt attention of a Court which should endeavour to
give full effect to the same unless such compromise is abhorrent to lawful composition of the society
or would promote savagery.

Code of Criminal Procedure, 1973 193