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CS EXECUTIVE
Chapter - 7
CRIMINAL PROCEDURE CODE 1973
INTRODUCTION
The Criminal Procedure Code, 1973 is the general law relating to criminal
procedure. The Code prescribes the procedures for the trial of offences specified
in the India Penal Code, 1860. Thus, the main object of criminal Procedure
Code is to supplement the substantive law contained in Indian Penal Code, by
prescribing the suitable procedure.
IMPORTANT CONCEPTS
Offence {Sec 2(n)}
Offence means any act or omission made punishable by any law for the time
Being in force
In simple terms, an offence is a wrong committed by any individual in a society.
Following are the four elements which constitute the offence:
❖ A Human being;
❖ Mens Rea (guilty mind or intention);
❖ Illegal act i.e. Actus Rea); and
❖ Injury to another person
Mens Rea
Mens Rea is one of the principles of criminal law that a crime is not committed
if the mind of the person doing the act in question is innocent. It is said that
“ACTUS NON FACIT REAM HISI MENS SIT REA” i.e. the intention and act
must both concur to constitute the crime and that is why it is said that guilty
(CS, MBA) SOMYA KATARIA 7.1 CONTACT NO.- 9131993373

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mind is necessary for liability in Criminal law. The general rule to be stated is
“there must be a mind at fault before there can be a crime.”
Bailable and Non- Bailable Offence {Sec 2 (a)}
Bailable offences are less serious than non-bailable offence. A Bail, in the case of
bailable offence, is a matter of right whereas a Bail, in case of non-bailable
offence, depends upon the discretion of court.
Bail means the release of an accused from custody of the officers of law and
entrusting him to the private custody of person who become bound as surety to
produce to accused to answer the charge at the stipulated time and date.
Anticipatory Bail [Section 438]
Anticipatory Bail is a bail which is granted to a person who apprehends arrest

but has not yet been arrested. Where any person has reason to believe that he
may be arrested on an accusation of having committed a non-bailable offence,
he may apply to the High Court or the court of sessions for a direction u/s 438.
The Court grants the anticipatory bail subject to the following conditions:
• That the accused shall make himself available for interrogation by a police
officer as and when required;
• He shall not threaten the witness so as to make them hostile;
• He shall not leave India without the prior permission of Court.
Cognizable and Non-Cognizable Offences/ Cases {Sec. 2(c) & 2(I)}

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Cognizable offence means an offence in which a person can be arrested by a

police officer without warrant. Cognizable offences are generally more serious in
nature and heavily punishable. In such cases, the police have hardly any time to
obtain a warrant of arrest from a court, as the offender m ay escape by the

time a warrant is obtainer or he may tamper with the material evidence.
Examples of Cognizable offences are Murder, Dacoity, rape, etc.
Non-Cognizable offence means an offence in which the police can’t arrest a
person without warrant. Non-cognizable offences are less serious in nature as

compared to cognizable offences. In case of these offences, injury cause to the
society is comparatively small.
Examples of non-cognizable offences are simple hurt, undue influence at an

election, etc.
Compliant {Sec. 2 (d)}
Complaint means any allegation made orally or in writing to a Magistrate, with

the view to is taking action under Criminal Procedure Code, that some person,
whether known or unknown, has committed an offence. It may be noted that

the term complaint doesn’t include a police report. Police report means a
report forwarded by a police officer to a Magistrate.
First Information Report (FIR)
When any person, whether aggrieved of by any offence done by others or not,

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relaying to any cognizable offence done by any person informs to the officer in
charge of any police station, either in writing or not, it is called First
Information Report. The police officer shall record the same in the register kept
for the purpose and a copy thereof shall be given to the informant. The Police
officer shall act on the basis of the said FIR.
Investigation, Inquiry and Trail
Investigation {Sec. 2 (h)}:
As per Criminal Procedure Code, investigation is to be conducted always by a

police officer or by any other authorized person. Investigation process consists of
the following steps:
❖ Proceeding to the spot;
❖ Ascertaining of facts and circumstances;
❖ Discovery and arrest of the suspected person; and

❖ Collection of evidence
Inquiry {Sec. 2 (g)}:

According to Criminal Procedure Code, inquiry is always conducted by the
Magistrate or by the Court. An inquiry includes every inquiry before trail to
ascertain whether any offence has been committed and whether he should be
put upon the trail.
Trail :
The word ‘trail’ has not been defined under Criminal Procedure Code. It means
the judicial process in accordance with law, whereby the question of guilt or
innocence of the person accused of an offence is determined.

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Thus, a trail ends either in conviction or acquittal.
MISCELLANEOUS PROVISIONS
PLEADER PUBLIC PROSECUTOR
Pleader is one who is authorized to be A public prosecutor is an officer of

present in a court and to practice as the court. There is one such person
a lawyer or take part in court with every High Court.
proceedings.
It is not essential to be a lawyer to Their work is to conduct prosecutions,

take part in court proceedings; appeals or other proceedings for the
anyone who is authorized can take Central or state government
part in them. whichever has appointed him.
SUMMON CASES AND WARRANT CASES { SEX 2(w) & 2(X)}
Warrant case means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding 2 years.

Summons case means a case relating to an offence and not being a warrant
case.
Thus, it can be seen that the distinction between two terms is based on the
quantum of the punishment that can be awarded. In other words, cases which
are punishable with imprisonment up to 2 years are summons cases and rest all
are warrant cases.
Further, in a summon case, the court order is directly issued to a person to

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produce himself before the court, whereas in a warrant case, the court order is
issued to the police to produce the person concerned before the court.
ARREST OF A PERSON
Arrest without warrant (Sec. 41)
Sec. 41 of the Criminal Procedure Code lays down the circumstances in which
Police officer may arrest a person without warrant. As per this, following
persons can be arrested by a Police Officer without warrant:
❖ Who has been concerned in any cognizable offence;
❖ Who has in his possession without lawful excuse, the burden of proving which
excuse shall lie on such person, any implement of housebreaking;
❖ Who has been proclaimed as an offender either under this code or by order
of the State Government;
❖ In whose possession anything is found which may reasonably or suspected to
be stolen property;
❖ Who obstructs a police officer while in the execution of his duty, or who has
escaped, or attempts to escape, from lawful custody;
❖ Who has committed any act at any place out of India which, if committed in
India, would have been punishable as an offence, and for which he is liable to
be apprehended or detained in custody in India;
❖ Who being a released convict, commits any breach of any rule, relating to
notification of residence or change of or absence from residence;
❖ For whose arrest any requisition, whether written or oral, has been received
from another Police Officer, provided that the person might lawfully be
from another Police Officer, provided that the person might lawfully be
arrested without a warrant by the officer who issues the requisition.

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Arrest on refusal to Give Name & Residence
If any person who is accused of committing a non-cognizable offence doesn’t
give his name, residence or gives a name and residence which the police officer
feels to be false, he may be taken into custody. However, such person can’t be
detained beyond 24 hours if his true name and address cannot be ascertained
of fails to execute a bond or furnish sufficient sureties. In that event, he shall be
forwarded to the nearest Magistrate having Jurisdiction.
Arrest by a Private Person (Sec. 43)

A private person may arrest or cause to be arrested any person who in his
presence commits a non-bailable or cognizable offence or who is a proclaimed
offender.
POWER OF THE COURT TO PASS SENTENCES
High Court
High Court may pass any sentence authorised by law.
Sessions/ Additional Sessions Judge
He 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.
Assistant Sessions Judge
He 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.
Chief Judicial Magistrate/ Chief Metropolitan Magistrate

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He may pass any sentence authorised by law except a sentence of death or of.
imprisonment for life or of imprisonment for a term exceeding Seven (07)

years
Magistrate of the First Class/ Metropolitan Magistrate

He may pass a sentence of imprisonment for a term not exceeding Three (03)
years or a fine not exceeding Ten Thousand rupees, or of both.
Magistrate of the Second Class
He may pass a sentence of imprisonment for a term not exceeding One (01)
year or a fine not exceeding Five Thousand rupees, or of both.
Sentence of imprisonment in Default of Fine {Sec. 30}
Where a fine has been imposed on an accused but the same has not been paid,
then he can be imprisoned in lieu of fine. However, this imprisonment shall not
exceed 1/4th of the period of the period of imprisonment, which the

Magistrate can award as maximum imprisonment.
Power to issue order in urgent cases of nuisance or apprehended danger {Sec

144}
Where the Executive, District or the Sub-Divisional Magistrate is of the view
that immediate prevention or speedy remedy is necessary to prevent,

obstruction, annoyance or injury to any person, or where there appears to be a
danger to human life, health or safety, or a possibility of public tranquility being
disturbed, or a riot, he may pass an urgent order. This order can either stop
any person from doing something that is disallowed under this act, or cause
any foreseeable harm to be avoided.

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SUMMONS AND WARRANTS

The general processes to compel appearance are:
Summons (Section 61)

A summon is issued either for appearance or for producing a document or thing
which may be issued to an accused person or witness. Every summons issued by
the Court shall be in writing, in duplicate, signed by the Presiding Officer of
such Court or by such officer as is authorised by the High Court and shall bear
the seal of the Court (Section 61).
The summons should be clear and specific in its terms as to the title of the
Court, the place at which, the day and time of the day when, the attendance
of the person summoned is required.
Warrant of arrest (Section 70)
Every warrant of arrest issued by a Court under this Code shall be in writing,
signed by the presiding officer of such Court, and shall bear the seal of the
Court. Such warrant shall remain in force until it is cancelled by the Court who
issued it, or until it is executed. (Section 70) The form of warrant of arrest is
Form No. 2 of the Second Schedule. The requisites of a warrant are as follows:
❖ It must be in writing.
❖ It must bear the name and designation of the person who is to execute it;
❖ It must give full name and description of the person to be arrested;
❖ It must state the offence charged;

❖ It must be signed by the presiding officer; and
❖ It must be sealed.

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Proclamation and attachment

Where a warrant remains unexecuted, the Code provides for two remedies:
❖ Issuing a proclamation (Section 82); and
❖ Attachment and sale of property (Section 83).
If a Court has reason to believe that any person against whom a warrant has
been issued by it has absconded or is concealing himself so that such warrant
cannot be executed, the Court may publish a written proclamation requiring
him to appear at a specified place and at a specified time not less than 30 days
from the date of publishing such proclamation. (Section 82)
While issuing proclamation, the Magistrate must record to his satisfaction that
the accused has absconded or is concealing himself. The object of attaching
property is not to punish him but to compel his appearance.
Search warrant
According to Section 93, a search warrant can be issued only in the following
cases:
• Where the Court has reason to believe that a person summoned to produce
any document or other thing will not produce it;
• Where such document or thing is not known to the Court to be in the

possession of any person; or Act, 1891.
• Where a general inspection or search is necessary. However, a search
warrant may be general or restricted in its scope as to any place or part

thereof.
But such warrant shall not be issued for searching a document, parcel or other

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thing in the custody of the postal or telegraph authority, by a magistrate other
than a District Magistrate or Chief Judicial Magistrate, nor would such warrant
be issued so as to affect Sections 123 and 124 of the Indian Evidence Act,
1872 or the Bankers’ Book Evidence
SECURITY FOR KEEPING PEACE AND GOOD BEHAVIOR & MAINTENANCE OF
PUBLIC ORDER
The object of this chapter is prevention of crimes and disturbances of public
tranquility and breach of the peace.
Security for keeping peace and good behavior
Security for keeping the peace on conviction
When a Court of Session or Court of a Magistrate of first class convicts a person
of any of the offences specified in sub-section (2) or of abetting any such

offence and is of opinion that it is necessary to take security from such person
for keeping the peace, the Court may, at the time of passing sentence on such
person, order him to execute a bond, with or without sureties, for keeping the
peace for such period, not exceeding three years, as it thinks fit.
Security for keeping the peace in other cases

When an Executive Magistrate receives information that any person is likely to:
• Commit a breach of peace; or
• Disturb the public tranquillity; or

• Do any wrongful act that may probably occasion a breach of the peace; or
disturb the public tranquillity; he may require such person to show cause why
he should not be ordered to execute a bond for keeping the peace for a period

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not exceeding one year as the Magistrate deem fit. (Section 107)
MAINTENANCE OF PUBLIC ORDER AND TRANQUILITY
A—Unlawful assemblies
Dispersal of assembly by use of civil force
Any Executive Magistrate or office in-charge of a police station or, in the ab
sence of such officer in-charge, any other officer not below the rank of sub-
inspector may command any unlawful assembly or any assembly of five or more
persons likely to cause a disturbance of the public peace, to disperse and it shall
be thereupon the duty of the members of such assembly to disperse accordingly.
If any such assembly does not disperse or conducts itself in a manner as to show
a determination not to disperse, any Executive Magistrate or police officer
referred to above may proceed to disperse such assembly by force and may
require the assistance of any male person not being an officer or member of the
armed forces and acting as such, for the purpose of dispersing such assembly
and if necessary arresting and confining the persons who form part of it, in
order to disperse such assembly. (Section 129)
Use of armed forces to disperse assembly

If any such assembly cannot be otherwise dispersed, and if it is necessary for
the public security that it should be dispersed, the Executive Magistrate of the
highest rank who is present may cause it to be dispersed by the armed forces
and to arrest and confine such persons in order to disperse the assembly or to
have them punished.

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Section 132 protects persons for any act purporting to be done under Sections
129 to 131. No prosecution shall be instituted against such persons in any
criminal Court except with the sanction of Central Government if the person is
an officer or member of the armed forces or with the sanction of State

Government in any other case. (Section 130)
B—Public Nuisances
Conditional order for removal of nuisance
Section 133 lays down the following public nuisances which can be proceeded
against:
• The unlawful obstruction or nuisance should be removed from any public
place or from any way, river or channel which is or may be lawfully used by
the public; or
• Carrying on any trade or occupation, or keeping of any goods or
merchandise, injurious to the health of the community; or

• The construction of any building or the disposal of any substance, as is likely
to cause conflagration or explosion; etc.
• The building, tent or structure near a public place.

• The dangerous animal requiring destroying, confining or disposal.
For initiating prevention under this Section the Magistrate should keep in mind
that he is acting purely in the public interest. For the applicability of clause A,
the public must have the right of way which is being obstructed.

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PREVENTIVE ACTION OF THE POLICE AND THEIR POWERS TO INVESTIGATE
Section 149 authorizes a police officer to prevent the commission of any
cognizable offence. If the police officer receives the information of a design to

commit such an offence, he can communicate such information to his superior
police officer and to any other officer whose duty it is to prevent or take
cognizance of the commission of any such offence. The police officer may arrest
the person without orders from Magistrate and without a warrant if the
commission of such offence cannot be otherwise prevented.
INFORMATION TO THE POLICE
Sec 154
Any person aware of any cognizable offence may give information to the police.
The information so received shall be recorded in the manner prescribed under

CrPC. The information so recorded u/s 154 is known as First Information
Report (FIR).
Where the concerned Police Officer doesn’t record the aforesaid information,
then the person giving the information can do the following:
• Inform the superintendent of Police regarding the refusal of the concerned
Police Officer. In such a case, the Superintendent of Police himself shall record
the information and investigate the matter.
• Inform the concerned Magistrate which, in turn, will take action against the
concerned Police Officer.

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Sec 155
If any person gives information to an officer-in-charge of the concerned police
station of the commission of a non-cognizable offence, the officer shall enter the
substance of such information in a particular book prescribed by the State

Government. The Officer, thereafter, shall refer the information to the
Magistrate for appropriate direction.
Sec. 155(2) provides that no police officer shall investigate a non-cognizable
case without case without the order of Magistrate having the power to try such
offence.
Sec. 155(4) provides that where a case relates to two or more offences and one
of them is cognizable, the case shall be demand to be a cognizable irrespective of
the fact that other offences are non-cognizable.
TAKING COGNIZANCE OF OFFENCES {SEC. 190}
It covers taking of cognizance of offences by Magistrates. It can be done when

he receives an intimation of the fact in any of the following ways:
❖ Upon complaint of the offence
❖ When a police officer reports the happening of such an offence

❖ When information regarding such an offence is received from someone other
than the Police.
PREVENTIVE ACTION OF THE POLICE AND THEIR POWERS TO INVESTIGATE
In general, there is no limitation of time in filling complaints under the Code.

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But delay may hurdle the investigation. Therefore, chapter XXXVI has been
introduced in the Code prescribing limitation period for taking cognizance of

certain offences. (Sections 467 to 473)
Except as otherwise specifically provided in the Code, no Court shall take

cognizance of an offence after the expiry of the period of limitation mentioned
below:
1. Six months, if the offence is punishable with fine only.
2. One year, if the offence is punishable with imprisonment for a term not
exceeding one year; and
3. Three years, if the offence is punishable with imprisonment for a term

exceeding one year but not exceeding three years.
The period of limitation in relation to offences which may be tried together
shall be determined with reference to the gravity of the offence where the
punishment inflicted for such offence is more severe or the most severe.
Commencement of the period of limitation
The period in relation to an offender commences (a) on the date of the offence;
(b) if the commission of the offence was not known to the person aggrieved or
to the police officer, the first day on which either such offence comes to the
knowledge of such person or to any police officer, whichever is earlier; (c) where
the identity of the offender is not known, the first day on which such identity
becomes known either to the person aggrieved or the police officer whichever is
earlier. (Section 469)
SUMMARY TRAIL (SEC 260)
Summary trail means speedy disposal of cases.

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Sec. 260 provides that summary trail can be conducted in respect of those
offences which are not punishable with death or imprisonment for life or
imprisonment exceeding 2 years. In simple words, we can say summary trail
can be conducted only in respect of those offences which are punishable with
imprisonment for a term not exceeding two years.
Further, summary trails can be conducted only in respect of those in which the
value of property does not exceed Rs. 2000/-.
It may be noted that Summary Trail can be conducted only by a Chief Judicial
Magistrate. Sec. 262 provides that if in a summary trail, the accused is found
to be guilty; he shall not be sentenced to imprisonment for a period exceeding 3
months.
Prevention action of the police and their powers to investigate
1. Sonu is convicted under Sec. 379 of the Indian Penal Code, 1860 for an
offence punishable with imprisonment which may extent to three years. He is
sentenced to undergo imprisonment for three and to pay a fine of Rs. 10,000.
In default to payment, he is ordered to serve imprisonment for one year more.
Sonu want to prefer an appeal against this judgment. Advice him.
Answer:
Sonu in this case, is sentenced to imprisonment of three years and is imposed a
fine of rupees Ten thousand for his offence. In case he fails to pay the fine, lie is
sentenced to further imprisonment for a year. He wished to appeal against the
judgment. This case is covered by Sec. 30 of the Code of Criminal Procedures,
1973, which provide for such an option and say that the magistrate is entitled

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to award additional imprisonment in case of non-payment of fine. However,

these power are limited to certain extents. The magistrate cannot cross the
limits regarding the period of imprisonment he can subject the accused to,
provided in Sec. 29 of the Code. Moreover, he cannot given such a punishment
in excess of one-fourth of the term of original punishment of imprisonment
decided by him.
2. Alok is tried summarily by the chief judicial magistrate for the charge of
committing theft and is sentenced to undergo imprisonment for 6 month. Can
Alok challenge this decision and, if so, how?
Answer:
Sub- section 2 of Sec. 2 of the Code of Criminal Procedure, 1973 says that in
case of a summary trial, the magistrate can punish the accuse by ordering
imprisonment upto three month and not more. Since in this case Alok, in a
summary trial, is sentence to undergo imprisonment for 6 month, he can freely
challenge this decision in the next higher court.
3. An executive magistrate receives information that Chanchal is likely to do a

wrongful act that may probably occasion a breach of place or disturb the public
tranquility. Whether he can required Chanchal to show cause why he should not
be ordered to executed a bond for keeping the peace for a period of three
years?
Answer:
Sec. 10 of the Code of Criminal Procedure, 1973 provide that the Executive
Magistrate can have require a person to show cause why a bond should not be
executed for ensuring peace for a maximum period of one year since here the
Magistrate want to issue a notice for keeping peace for three years, it would be
outside his right and hence he cannot required Chanchal show cause pertaining
to a period of three years.

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4. A police officer has come to know that certain persons sitting in a house
equipped with arms are planning to commit a dacoity. The police officer
approaches the house and arrests all the person without getting any other from
the magistrate and without any warrant. Examine the validity of their arrest.
Answer:
Under Sec. 151 of the Code of Criminal Procedure, 1973, if a police officer
comes to know of a person’s intention to commit a cognizable offence, he can
arrest such a person or party without a warrant or order issue by Magistrate.
However, if has to appear from the state of things that no order action is
possible in the situation to prevent the offence from happening. Such person
needs to be presented before the Magistrate in twenty-four hours or less time.
CASE LAWS FOR PRACTICE
Case Law:-1
Raman moves an application before the Judicial Magistrate of First Class of the
area for grant of anticipatory bail in connection with a bailable offence. Will the
magistrate be competent to grant him anticipatory bail? Decide.
Case Law:-2
A magistrate of the first class passes a sentence of imprisonment for a term of
three years with a fine of Rs.5, 000 and in case of failure to pay the fine an
additional imprisonment for another one year. The convict feels aggrieved by
the sentence. Can he prefer an appeal against the judgement?
Case Law:-3

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Information is given to the in charge of police station against Rahul, a small

trader, that he has committed a non-cognizable offence of fraudulent use of
false weights and measures. The in charge of the police station, after entering
the substance of the information in the Daily Diary kept at the police station,
commences investigation without the order of the magistrate. Rahul objects to
this action of the police. Will the objection of Rahul be sustained?
Case Law:-4
A requisition was received by the sub-inspector of a police station from another
police station to arrest done Sameer in connection with the commission of non-
cognizable offence. Can the sub-inspector arrest Sameer?
Case Law:-5
Sohan is tried summarily by the metropolitan magistrate on the charge of
committing theft and is sentenced to undergo imprisonment for a period of
four months. Can Sohan challenge the decision? If so, on what grounds?
Case Law:-6
Manav is tried summarily by the Chief Judicial Magistrate on the charge of
committing theft and is sentenced to undergo rigorous imprisonment for six
months. Manav wants to challenge this decision. Can he do so? Discuss.
Case Law:-7
A tenant had abandoned the disputed house before his death but possession of
the said house was not handed over to the landlord. The heirs of the deceased
tenant had not paid rent but they had locked the house. The Sub-Divisional
Magistrate issued an order under section 144 of the Code of Criminal
Procedure, 1973 to unlock the house. The heirs of the deceased tenant resist

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the order of the Sub-Divisional Magistrate. Will they succeed? What will be your
answer, if the said house is in dilapidated condition and is likely to endanger
human life, health or safety?
Case Law:-8
A magistrate of the first class passes a sentence of imprisonment for a term of
three years with a fine of Rs.5, 000 and in lieu of non –payment thereof and
additional imprisonment for another one year. The convict feels aggrieved by
the sentence.
• Has the convict any right to appeal against this sentence?
• Will the situation change, if the sentence is passed by the court of a chief
judicial magistrate?
Give reasons in support of your answer.
Case Law:-9
Sumesh, a sub-inspector of police, comes to know from a secret source that five
persons, staying in a house with deadly weapons in Kanpur, are planning to
commit murder of Gabbar, a resident of a nearby house. Sumesh apprehends
that those five persons will commit the crime at any moment. Sumesh, a sub-
inspector of police goes to that house where those five persons were staying and
arrests them along with weapons in their possession, without any warrant or
order from the magistrate. Is the arrest of all the five persons valid? Give
reasons.
Case Law:-10
The Sub Divisional Magistrate at the instance of officer in-charge of police station
passed an order under section 144 of the Code Of Criminal Procedure, 1973 by
which a petitioner’s Puja committee and others were prohibited from taking

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immersion procession of statue of Goddess Durgasnd passing in front of two

mosques in the village concerned playing music on Vijayadashmi day. Members of
Hindu community agitate the order as such order amounts to interference in
their legal exercise of customary and religious right. Whether the order passed by
the Sub Divisional Magistrate is valid? Give reasons in support of your answer.
Case Law:-11
Arun is charged of murder of Varun. The charge sheet is filed in the court of
Chief Judicial Magistrate, who passed an order of sentence of imprisonment for
life. Arun engages you as lawyer to advise him. Advise him giving reasons.
Case Law:-12
Angad is charged for murder of Binod. The charge sheet is filed in the court of
Chief Judicial Magistrate, who passed an order of sentence of imprisonment for
life. Angad engages you as an advocate. Advise the course of action giving
reasons.
Case Law:-13
Sohan is tried summarily by the metropolitan magistrate on the charge of
committing theft and is sentenced to undergo imprisonment for a period of
four months. Can Sohan challenge the decision? If so, on what grounds?
Case Law:-14
X commits an offence by causing injury to Y, punishable under Section 323 of
the Indian Penal Code which is punishable for a term of one year or with a fine
of Rs. 5,000. Y makes a complaint to the Metropolitan Magistrate against X
after 10 months of the commission of the offence. Can the said court take
cognizance of that offence?

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Case Law:-15
A first information report is lodged against krook for committing one cognizable
and three non-cognizable offences. Can the police conduct investigation in respect
of all the four offences without an order from the Magistrate?
Case Law:-16
A police officer has come to know that certain persons sitting in a house equipped
with arms are planning to commit dacoity. The police officer approaches the
house and arrests all the persons without getting any order from the Magistrate
and without any warrant. Examine the validity of their arrest.

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LESSON 12
Indian Stamp Act, 1899
INTRODUCTION
Bill of Lading
Don’t try to minimize your struggle, try to make it more meaningful

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“Bill of Lading” includes a ‘through bill lading’ but does not include a mate’s
receipt. [Section 2(4)]

A bill of lading is a receipt by the master of a ship for goods delivered to him
for delivery to X or his assigns. Three copies are made, each signed by the
master. One is kept by the consignor of the goods, one by the master
Cheque
“cheque” means a bill of exchange drawn on a specified banker and not
expressed to be payable otherwise than on demand. Section 2(7).
It should be noted that in India, cheques are no longer subject to stamp duty.
Entry 21 in the Schedule levying duty on cheque was deleted by Act 5 of 1927
Clearance List
“clearance list” means a list of transactions of sale and purchase relating to
contracts traded on the stock exchanges submitted to a clearing corporation in

accordance with the law for the time being in force in this behalf. Section
2(7A)
Clearance Corporation
“clearing corporation” means an entity established to undertake the activity of
clearing and settlement of transactions in securities or other instruments and

includes a clearing house of a recognised stock exchange. Section 2(7B)
Conveyance
The term “conveyance” includes a conveyance on sale and every instrument by
which property (whether movable or immovable) is transferred inter vivos1 and
which is not otherwise specifically provided for by Schedule. It does not include

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a will. [Section 2(10)]
Debenture
According to section 2(10A) “debenture” includes––
 debenture stock, bonds or any other instrument of a company evidencing a
debt, whether constituting a charge on the assets of the company or not;
 bonds in the nature of debenture issued by any incorporated company or body
corporate;
 certificate of deposit, commercial usance bill, commercial paper and such other
debt instrument of original or initial maturity upto one year as the Reserve
Bank of India may specify from time to time;
 securitized debt instruments; and
 any other debt instruments specified by the Securities and Exchange Board of
India from time to time.
Depository
According to section 2(14) “instrument” includes
 every document, by which any right or liability is, or purports to be, created,
transferred, limited, extended, extinguished or recorded;
 a document, electronic or otherwise, created for a transaction in a stock

exchange or depository by which any right or liability is, or purports to be,
created, transferred, limited, extended, extinguished or recorded; and
 any other document mentioned in Schedule I,
Impressed stamp

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According to Section 2(13), “impressed stamp” includes:
a) labels affixed and impressed by the proper officer; and

b) stamps embossed or engraved on stamp paper
Bill of Exchange
The Negotiable Instruments Act, defines a “bill of exchange” as an instrument
in writing, containing an unconditional order signed by the maker, directing a
certain person to pay a certain sum of money only to, or to the order of, a
certain person or to the bearer of the instrument.
Bill of exchange payable on demand

Under Section 2(3) of the Stamp Act, a “bill of exchange payable on demand”
includes:
a) an order for the payment of any sum of money by a bill of exchange or
promissory note or for the delivery of any bill of exchange or promissory note in
satisfaction of any sum of money, or in the payment of any sum of money out
of any particular fund which may or may not be available, or upon any
condition or contingency which may or may not be performed or happen;
b) an order for the payment of any sum of money weekly, monthly or at any
other said period; and
c) a letter of credit, that is to say, any instrument by which one person authorises
any other person to give credit to the person in whose favour it is drawn.
Bond
a) any instrument whereby a person obliges himself to pay money to another on

condition that the obligation shall be void if a specified act is performed, or is
not performed, as the case may be
b) any instrument attested by a witness not payable to order or bearer, whereby

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a person obliges himself to pay money to another; and
c) any instrument so attested, whereby a person obliges himself to deliver grain or

other agricultural produce to another.
Lease
“Lease” means a lease of immovable property and includes also:
a) a patta;
b) a kabuliyat or other undertaking in writing, not being a counterpart of a lease
to cultivate, occupy or pay or deliver rent for, immovable property;
c) any instrument by which tolls of any description are let
d) any writing on an application for a lease intended to signify that the

application is granted. [Section 2(16)]
A patta is an instrument given by the Collector of District or any other receiver
of the revenue, to the cultivator, specifying the condition or conditions upon
which the lands are to be held and the value or proportion of the produce to be
paid therefor.
A Kabuliyat is executed by the lessee, accepting the terms ofthe lease and
undertaking to abide by them. Although, it is not a lease under Section 105 of
the Transfer of Property Act, it is expressly included in the definition for the
purposes of the Stamp Act.
Toll is a tax paid for some liberty or privilege, such as for passage over a bridge,
ferry, along a highway or for the sale of articles in a market or fair or the like.
It does not include ‘octroi’ or ‘chungi’.
Market value

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According to section (16B), “market value”, in relation to an instrument
through which—
a) any security is traded in a stock exchange, means the price at which it is so
traded;
b) any security which is transferred through a depository but not traded in the
stock exchange, means the price or the consideration mentioned in such
instrument
c) any security is dealt otherwise than in the stock exchange or depository, means
the price or consideration mentioned in such instrument.
Promissory Note
it means a promissory note as defined by the Negotiable Instruments Act,
1881.It also includes a note promising the payment of any sum of money out
of a particular fund which may or may not be available, or upon any condition
or contingency which may or may not be performed or happen. [Section 2(22)]
Requisities of a promissory note as per the Negotiable Instruments Act, 1881
are the following:

• the document must contain an unconditional undertaking to pay;
• the undertaking must be to pay money only;
• the money to be paid must be certain;

• it must be payable to or to the order of a certain person or to bearer;
• the document must be signed by the maker
INSTRUMENTS CHARGEABLE WITH DUTY

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However, no duty shall be chargeable in respect of:
1. any instrument executed by or on behalf of or in favour of the Government, in
cases where, but for this the Government would be liable to pay the duty
chargeable in respect of such instrument
2. any instrument for the sale, transfer or disposition, either absolutely or by way
of mortgage or otherwise, of any ship or vessel or any part, interest, share of
property of or in any ship or vessel registered under the Merchant Shipping
Act, 1894 or under Act XIX of 1838 or the Indian Registration of Ships Act,
1841 as amended by subsequent Acts.
3. Any instrument executed by, or, on behalf of, or in favour of, the Developer or
Unit or in connection with the carrying out of purposes of the special Economic
Zone.

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On this point Esher M.R., in Commissioners of Inland Revenue v. G. Angus,
(1889) 23 QBD 579, stated that “goodwill can be sold and conveyed to
purchasers without any ‘conveyance’ being executed and if you treat the
document as only an agreement with regard to the goodwill, there will never
be any conveyance executed and the property would have been transferred to
the purchaser without the Crown getting any advalorem duty upon the
transfer. If a vendor can convey the property sold to the purchaser without the
execution of any instrument, he can convey it without paying any duty under
Section 70. The subject may have the good fortune to escape the stamp duty, if
he can get a conveyance of property sold to him without the execution of any
instrument….. “The Crown ….. must make out its right to duty and if there be a
means of evading the stamp duty, so much the better for those who can evade
it”.
EXTENT OF LIABILITY OF INSTRUMENTS TO DUTY (SEVERAL INSTRUMENTS

IN SINGLE TRANSACTION OF SALE, MORTGAGE OR SETTLEMENT)

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Illustrations (Section 4 held applicable)
• A executed a conveyance of immovable property. On the same deed his nephew
(Undivided in status) endorsed his consent to the sale, as such consent was
considered to be necessary. It was held that the conveyance was the principal
instrument. The consent was chargeable with only one rupee (ILR 13 Bom
281).
• Subsequent to a sale of immovable property, two declarations were executed
reciting that the sale was subject to an equitable mortgage created by the
vendor. These declarations were held to be chargeable, together with the sale
deed, as having completed the conveyance (Somaiya Organics Ltd. v. Chief
Controlling Revenue Authority, AIR 1972 All 252).
• The Rangoon Gymkhana executed a duly stamped trust deed, mortgaging its
assets as security for the repayment of the debenture stock issued by it. In
addition, it had issued certificates of debenture stock to the subscribers, but

these did not contain any promise to repay any need, but merely stated the
amount standing in each shock holder’s name. It was held that the certificates
were not debentures, but were instruments employed to complete the mortgage
[Rangoon Gymkhana In re, AIR 1927 Rang. 37 (Section 4 applied)]
SECTION 4 NOT APPLICABLE

a) A lease is executed and got registered. A second document is executed altering
the terms of the first document. The second document has to be stamped as a
lease. Section 4 does not apply.

b) A purchaser of land executes a mortgage of the land in favour of the vendor for
a portion of the purchase money. The mortgage is liable to full duty as a
separate instrument. Section 4 does not apply

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Instruments relating to several distinct matters

Under Section 5, an instrument comprising or relating to several distinct
matters is chargeable with the aggregate amount of the duties with which each
separate instrument, relating to one of such matters, would be chargeable

under the Act (This is the reverse of the situation governed by Section 4).
llustrations as to “distinct matters”
 A document containing both an agreement for the dissolution of a partnership
and a bond, is chargeable with the aggregate of the duties with which two such
separate instruments would be chargeable. The two are “distinct

matters”(Chinmoyee Basu v. Sankare Prasad Singh, AIR 1955 Cal. 561 (cf. AIR
1936 Lah. 449).
 A lease to joint tenants requires only one stamp.
 A power of attorney executed by several persons authorising the agent to do
similar acts for them in relation to different subject matter is chargeable under
Section 5, where they have no common interest.
 The position is the same where a person is an executive or administrator and
signs an instrument containing a disposition by him in his personal capacity and

also a disposition as executor. The two capacities are different (Member, Board
of Revenue v. Archur Paul Benthall, AIR 1956 SC 35).
Principal and ancillary
Where a document contains a transfer of mortgage and an agreement to make
a loan, the mortgage and the loan are distinct matters and separately

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chargeable.
If in a lease there is also an agreement to pay a certain sum on account of the

balance of previous year, the document is chargeable (i) as a lease and (ii) also
as a bond.
A lease reserving separately rent for house and rent for furniture is chargeable
separately for each of the items.
Thus, the test usually adopted is the test of “leading object”. If there is only one
leading object, Section 5 will not apply. But if there are several distinct
contracts, each is taxable.
INSTRUMENTS COMING WITHIN SEVERAL DESCRIPTIONS IN SCHEDULE- I

Where a deed (i) contains a stipulation binding the executant to deliver his
sugarcane crop to the obligee under the deed and (ii) also provides that the
sugarcane crop is hypothecated as security for payment of money advanced by
the obligee, the deed fulfills the dual character of the mortgage and a bond and
is therefore chargeable to the highest of the duties by virtue of section 6
SECURITIES DEALT IN DEPOSITORY NOT LIABLE TO STAMP DUTY
As per Section 8A of the Act—

a) an issuer, by the issue of securities to one or more depositories shall, in respect
of such issue, be chargeable with duty on the total amount of security issued by
it and such securities need not be stamped;
b) where an issuer issues certificate of security under sub-section (3) of Section 14
of the Depositories Act, 1996, on such certificate duty shall be payable as is

payable on the issue of duplicate certificate under this Act;
c) the transfer of—

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i. registered ownership of securities from a person to a depository or from a
depository to a beneficial owner;

ii. beneficial ownership of securities, dealt with by a depository;
iii. beneficial ownership of units, such units being units of a Mutual Fund including
units of the Unit Trust of India established under sub-section (1) of Section 3 of
the Unit Trust of India Act, 1963, dealt with by a depository, shall not be
liable to duty under this Act or any other law for the time being in force
VALUATION FOR DUTY UNDER THE ACT
 According to Section 20, where an instrument is chargeable with advalorem

duty in respect of any money expressed in any currency other than that of
India, such duty shall be calculated on the value of such money in the currency
of India, according to the current rate of exchange on the date of the
instrument
 Section 21 provides that in the case of an instrument chargeable with

advalorem duty in respect of any stock or any marketable or other security,
such duty shall be calculated on the value of such stock or security according to
the average price or the value thereof on the date of the instrument. The term
“marketable security” has been defined in Section 2(16-A) of the Act.
Where the shares are quoted on the stock exchange, it is easy to ascertain the
price of the shares or stock. However, where the shares or stocks are not quoted
on any stock exchange, the valuation has to be based upon the average of the
latest private transactions, which can generally be ascertained from the

principal officer of the concerned company or corporation
 Section 23A provides that in the case of an instrument (not being a promissory

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note or bill of exchange) which -
i. is given upon the occasion of the deposit of any marketable security by way of
security for money advanced or to be advanced by way of loan, or for an
existing or future debt, or
ii. makes redeemable or qualifies a duly stamped transfer, intended as a security,
of any marketable security
It shall be chargeable with duty as if it were an agreement or memorandum of
an agreement, chargeable with duty under Article 5(c) of Schedule I to the Act.
iii. According to Section 24 upon every purchase ad valorem duty has to be paid
on the entire consideration which either directly or indirectly represents the
value of the free and unencumbered corpus of the subject matter of the sale
(Collector of Ahmedabad v. Deepak Textile Industries, AIR 1966 Guj. 227)
What Section 24 means is that where property is sold subject to the payment
by the purchaser, discharging a debt charged on the property, then the
purchaser is really paying a consideration which includes the amount of that
debt also (Somayya Organics Ltd. v. Board of Revenue, AIR 1986 SC 403).
Explanation to Section 24 provides that in the case of sale of property subject
to mortgage or other encumbrances, any unpaid mortgage money or money

charged together with the interest, if any, due on the same shall be deemed to
be part of the consideration for the sale provided that where property subject
to a mortgage is transferred to the mortgagee he shall be entitled to deduct

from the duty payable on the transfer the amount of any duty already paid in
respect of the mortgage. Three illustrations which have been appended to the
Section are as under:

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a) A owes B Rs. 1,000/-. A sells a property to B, the consideration being Rs.

500/- and the release of the previous debt of Rs. 1,000/-. Stamp duty is
payable on Rs. 1,500/-
b) A sells a property to B for Rs. 500 which is subject to a mortgage to C for Rs..
1,000/- and unpaid interest Rs. 200/-. Stamp duty is payable on Rs. 1,700
c) A mortgages a house of the value of Rs. 10,000/- to B for Rs. 5,000/-. B
afterwards buys the house from A. Stamp duty is payable on Rs. 10,000/- less
the amount of stamp duty already paid for the mortgage.
iv. Section 25 deals with the manner of computation of duty in the case of
annuities. Valuation of an annuity will be material, where the payment of
annuity or other sum payable periodically is secured by an instrument or where
the consideration for a conveyance is an annuity or other sum payable

periodically. In such cases, the amount secured by such instrument or the
consideration for such conveyance, as the case may be, shall be deemed to be:
where the sum payable is for a definite period so that the total amount to be
paid can be previously ascertained such total amount;
where the sum is payable in perpetuity or for an indefinite time not terminable
with any life in being at the date of such instrument or conveyance – the total
amount which, according to the terms of such instrument or conveyance will or
may be payable during the period of twenty years calculated from the date on
which the first payment becomes due; and
where the sum is payable for an indefinite time terminable with any life in
being at the date of such instrument or conveyance – the maximum amount

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which will be or which may be payable as aforesaid during the period of 12
years calculated from the date on which the first payment becomes due.
v. Section 26 This object is sought to be achieved by providing, that the executant
can value the instrument as he pleases, but he shall not be entitled to recover
under such document any amount in excess of the amount for which the stamp
duty is sufficient.
CONSIDERATION TO BE SET OUT
Section 27 The Collector cannot proceed to ascertain the value of the property
with a view to causing the instrument to be stamped with reference to the

value so ascertained by the Collector. The Act does not provide for any powers
to the revenue authority to make an independent enquiry into the value of the
property conveyed for determining the duty chargeable. (In Re. Muhammad
Muzaffar Ali AIR 1922 All 82)
APPORTIONMENT
Under Section 28(1) where a person contracts the sale of property as a whole
and thereafter conveys to the purchaser the property in separate parts, the
consideration shall be apportioned in such manner as the parties think fit,
provided that a distinct consideration is set-forth for each separate part in the
conveyance and thereafter the conveyances shall be chargeable with ad valorem

in respect of such distinct consideration.
Under Section 28(2), where the contract is for the sale of a property as a
whole to two or more purchasers jointly or by any person for himself and
others, and the property is conveyed to them in parts by separate conveyance,
then each distinct part of the consideration shall be chargeable with ad valorem

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duty in respect of the distinct part of the consideration so specified.
Section 28(4) provides that where a person contracts for the sale of property
and before obtaining a conveyance in his favour, enters into a contract to sell
the property in parts to other persons, the conveyances which may be executed
directly by the owner to each sub-purchaser would be liable to be charged with
duty in respect of the consideration paid by the sub-purchaser, original price
for the whole and the aggregate price paid by the sub-purchasers, subject to a
minimum duty of Re. 1/-.
METHODS OF STAMPING
According to the provisions of the Act and rules made thereunder, the duty
with which an instrument is chargeable is to be paid by means of stamps
indicated in the Act and the rules. Generally, rules deal with the subject.
Section 10 provides that all duties with which any instrument is chargeable
shall be paid, and such payment shall be indicated on such instrument, by
means of stamps according to the provisions contained in the Act, or when no
such provision is applicable thereto, as the State Government concerned may by

rule, direct. The rules may, among other matters, regulate:
a) in the case of each kind of instrument, the description of stamps which may be
used;
b) in the case of instruments stamped with impressed stamps, the number of
stamps which may be used;

c) in the case of bills of exchange or promissory notes, the size of the paper on
which they are written.

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There are two types of stamping, namely:
USE OF ADHESIVE STAMPS
MODE OF CANCELLATION OF ADHESIVE STAMPS

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In Melaram v. Brij Lal, AIR 1920 Lah. 374, it was held that a very effective
method of cancellation is the drawing of diagonal lines right across the stamps
with ends extending on to the paper of the document. A cross marked by an
cancellation of the stamp in Kolai Sai v. Balai Hajam, AIR 1925 Rang. 209.
Accordingly, where the adhesive stamps on promissory note were cancelled by
drawing lines on them in different directions and stretching beyond the edge of
the stamp on the paper on which the promissory note was written, it was held
that the stamp had been effectually cancelled. Where one of the four stamps
used on an instrument had a single line drawn across the face of the stamp, the

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second had two parallel lines, the third three parallel lines and the fourth two
lines crossing each other, it was held that the stamps must be regarded as
having been cancelled in manner so that they could not be used again (In re
Tata Iron Steel Company, AIR 1928 Bom. 80). Putting two lines crossing each
other is effective (AIR 1961 Raj. 43).
Where it is alleged that the cancellation was made at later stage than that of
execution, the burden of proving it, lies on the party who so alleges. Where an
instrument prima facie appears to be duly stamped and cancelled by the
drawer at the date of execution, the burden of providing the contrary lies on
the party who avers that the cancellation was not effected at the time of
execution. In the absence of evidence to the contrary, it may be inferred that
the stamp was duly affixed and cancelled.
INSTRUMENTS STAMPED WITH IMPRESSED STAMPS HOW TO BE WRITTEN
(WRITING ON STAMP PAPER)
Under Section 14, no second instrument chargeable with duty shall be written
upon piece of stamp paper upon which an instrument chargeable with duty has
already been written. However, this section shall not prevent any endorsement
which is duly stamped or is not chargeable with duty, being made upon any
instrument for the purpose of transferring any right created or evidenced

thereby, or of getting the receipt of any money or goods the payment or
delivery of which, is secured thereby.
DENOTING DUTY
Section 16 provides that where the duty with which an instrument is
chargeable, or its exemption from duty, depends in any manner upon the duty

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actually, paid in respect of another instrument, the payment of such last
mentioned duty, shall, if application is made in writing to the Collector for that
purpose, and on production of both the instruments, be denoted upon such first
mentioned instrument, by endorsement under the hand of the Collector of
Stamps or in such other manner as the rules of the State Government may
provide.
TIME OF STAMPING INSTRUMENTS
 Instruments executed inside India: Section 17 provides that all instruments
chargeable with duty and executed by any person in India shall be stamped
before or at the time of execution. The scope of Section 17 is restricted to only

instruments executed in India.
 Instruments executed outside India: Section 18 relates to foreign instruments
(other than bills and notes), received in India; Foreign bills and notes received in
India have been dealt with, in Section 19. According to Section 18, every
instrument chargeable with duty executed only out of India and (not being a
bill of exchange or promissory note) may be stamped within three months after
it has been first received in India.
ADJUDICATION AS TO STAMPS
❖ Under Section 31(1) when (i) an instrument, (whether executed or not and
whether previously stamped or not), is brought to the Collector, and (ii) the
person bringing it applies to have the opinion of that officer as to the duty if
any, with which it is chargeable, and (iii) pays a fee (not exceeding Rs. 5 and
not less than 50 naya paise as the Collector may direct), the Collector shall
determine the duty if any with which in his judgment, the instrument is
chargeable. Under Section 31 (2), the Collector may require to be furnished

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with an abstract of the instrument and also with such affidavit or other
evidence as he may deem necessary to prove that all the facts and
circumstances affecting the chargeability of the instrument with duty, or the
amount of duty with which it is chargeable, are fully and truly set-forth
therein, and may refuse to proceed upon accordingly.
However, no evidence furnished pursuant to this section shall be used against
any person in any civil proceeding, except in an enquiry as to the duty with
which the instrument to which it relates is chargeable. Every person by whom
such evidence is furnished shall, on payment of the full duty, be relieved from
any penalty which he may have incurred under the Act by reason of the
omission to state truly in such instrument any of the facts or circumstances
❖ The duty of the Collector under Section 31 is only to determine the stamp duty
payable upon the instrument. He is not authorised to impound the instrument
or to impose any penalty if he comes to the conclusion that the instrument is
❖ The proviso to Section 32(3) categorically provides that the Collector shall not
make any endorsement on any instrument under Section 32, where –
a) any instrument is executed or first executed in India and brought to him after
the expiration of one month from the date of its execution or first execution, as
the case may be;
b) any instrument is executed or first executed out of India and brought to him
after the expiration of three months after it has been first received in India; or
c) any instrument chargeable with a duty not exceeding 10 naya paise or any bill

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of exchange or promissory note, is brought to him after the drawing or
execution thereof, on paper not duly stamped.
INSTRUMENTS NOT DULY STAMPED – TREATMENT AND CONSEQUENCES
(IMPOUNDING)
 Section 33 contains a mandate on certain officials to impound an instrument
which is not duly stamped. Section 33(1) provides that every person having by
law or consent of parties, authority to receive evidence.
the Court or public officer authorised by this Section must, exercise the powers
under the Section suo moto and the jurisdiction of the Court does not depend
upon raising of an objection by the parties. For the purposes of this section, the
State Government may determine what offices are public offices. The Section
also provides that the instrument must be impounded, before it can be
admitted in evidence.
 Court before which a copy of a document has been produced cannot compel the
party to produce the original document with a view to impounding it, having
received information that is not sufficiently stamped. It is open to the party to
refuse to obey the order of the Court in this respect
 An arbitrator has the consent of parties to adjudicate the issues coming before
him and where the parties tender evidence, an arbitrator has a statutory duty
under Section 33(1) to check whether the instrument so produced is duly
stamped and if not, to impound the same.
UNSTAMPED RECEIPTS
Section 34 provides that where the instrument is an unstamped receipt
produced in the course of an audit of any public account, the officer before

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whom the receipt is produced has a discretion either to impound or to require
the receipt to be stamped. This section applies where the receipt is chargeable
with a duty not exceeding 10 naya paisa. The officer concerned can, instead of
impounding the receipt require a duly stamped receipt to be substituted
therefore.
INSTRUMENTS NOT DULY STAMPED INADMISSIBLE IN EVIDENCE
A. Section 35 stipulates that no instrument chargeable with duty shall be–
a) admitted in evidence for any purpose whatsoever by any person authorised by
law (such as judges or commissioners) or by the consent of the parties (such as

arbitrators) to record evidence; or
b) shall be acted upon; or
c) registered; or
d) authenticated by any such person as aforesaid or by any public officer
unless such instrument is duly stamped
B. The proviso to Section 35 provides as under
i. any instrument not being an instrument chargeable with a duty not exceeding
10 naya paisa only, or a bill of exchange, or promissory note, subject to all such
expectations, be admitted in evidence on payment of the duty with which the

same is chargeable, or, in the case of an instrument insufficiently stamped, of
the amount required to make up such duty, together with a penalty of Rs. 5/-
or when ten times the amount of the proper duty or deficient portion thereof
exceeds Rs. 5/-, on a sum equal to ten times such duty or portion;
ii. where a contract or agreement of any kind is affected by the correspondence
consisting of two or more letters and any one of the letters bears the proper

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stamp, the contract or agreement shall be deemed to be duly stamped;
C. Where an unstamped instrument is lost, the party relying on it is helpless and
no payment of penalty can enable admission of secondary evidence.
ADMISSION OF INSTRUMENTS (WHERE NOT TO BE QUESTIONED)
Where a question as to the admissibility of a document is raised on the ground
that it has not been stamped, or has not been properly stamped, it has to be
decided then and there when the document is tendered in evidence. Once the
Court, rightly or wrongly, decides to admit the document in evidence, so far as
the parties are concerned, the matter is closed. (Javer Chand and ors. v.
Pukhraj Surana, AIR 1961 SC 1665).
DEALING WITH INSTRUMENTS IMPOUNDED
 Section 38 deals with instruments impounded under Section 33. A person
impounding an instrument under Section 33 and receiving the same in

evidence (upon payment of penalty under Section 35 or, of duty under Section
37) shall send, to the Collector of Stamps, an authenticated copy of such
instrument, together with a certificate in writing, stating the amount of duty

and penalty levied in respect thereof and shall send such amount to the
Collector or to such person as the Collector may appoint in this behalf
 Section 39 vests the Collector with certain powers to refund penalty recovered
by a court on impounding a document not duly stamped when produced before
It.
Collector’s Power to Stamp Instrument Impounded
a) if he is of the opinion that instrument is duly stamped or is not chargeable with

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duty, he shall certify by endorsement thereon that it is duly stamped, or that it
is not so chargeable as the case may be;
b) if he is of the opinion that such instrument, is chargeable with duty and is not
duly stamped, he shall require the payment of the proper duty or the amount
required to make up the same, together with a penalty of Rs. 5/-, if he thinks
fit and amount not exceeding ten times the amount of the proper duty or of
the deficient portion thereof, whether such amount exceeds or falls short of Rs.
5/-.
INSTRUMENTS UNDULY STAMPED BY ACCIDENT

Section 41 deals with cases where a person, of his own motion bring it to the
Collector’s notice that the instrument is not duly stamped. In such cases, if the
Collector is satisfied, that the omission to pay the proper duty was due to
accident, mistake or urgent necessity, he may receive the deficit amount and
certify by endorsement on the instrument that the proper duty has been levied.
REFUND OF DUTY OR PENALTY IN CERTAIN CASES BY REVENUE
AUTHORITY

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ALLOWANCE AND REFUND

the Collector may, on application made within the period prescribed in Section
50, and if he is satisfied as to the facts, make allowance for impressed stamps
spoiled in the cases hereinafter mentioned, namely:
❖ The stamp on any paper inadvertently and undesignedly spoiled, obliterated or
by error in writing or any other means rendered unfit for the purpose intended
before any instrument written thereon is executed by any person.
❖ The stamp on any document which is written out wholly or in part; but which
is not signed or executed by any party thereto;
❖ In the case of bills of exchange payable otherwise than on demand or
promissory notes:
a) The stamp on any such bill of exchange signed by or on behalf of the drawer
which has not been accepted
b) The stamp on any promissory note signed by or in behalf of the maker which
has not been made use of in any manner whatever or delivered out of his
hands;
❖ The stamp used for an instrument executed by any party thereto which–
a) Has been afterwards found to be absolutely void in law from the beginning
b) Has been afterwards found unfit, by reason of any error or mistake therein, for
purpose originally intended;

c) By reason of the death of any person by whom it is necessary that it should be
executed, without having executed the same, or of the refusal of any such
person to execute the same, cannot be completed so as to effect the intended

CS EXECUTIVE
transaction in the form proposed;
d) For want of the execution thereof by some material party, and his inability or
refusal to sign the same, is in fact incomplete and insufficient for the purpose
for which it was intended;
e) By reason of the refusal of any person to act under the same or to advance any
money intended to be thereby secured or by the refusal or non-acceptance of
any office thereby granted, totally fails of the intended purpose;
f) Becomes useless in consequence of the transaction intended to be thereby
effected being effected by some other instrument between the same parties and
bearing a stamp of not less value;
g) Is deficient in value and the transaction intended to be thereby effected has

been affected by some other instrument between the same parties and bearing
a stamp of not less value;
TIME LIMITS
A. in the cases mentioned in clause (d)(5) of Section 49, within two months of the
date of the instrument;
B. in the case of a stamped paper on which no instrument has been executed by

any of the parties thereto, within six months after the stamp has been spoiled;
C. in the case of a stamped paper in which an instrument has been executed by

any of the parties thereto, within six months after the date of the instrument,
or if it is not dated, within six months after the execution thereof by the person
by whom it was first or alone executed.
UNUSED FORMS
Allowance may be made without limit of time, for stamped papers used for

CS EXECUTIVE
printed forms of instruments any bankers or by any incorporated company or
other body corporate
MISUSED STAMPS
Section 52 deals with allowance for misused stamps and applies to both
impressed and adhesive stamps in the following instances:
a) When any person has inadvertently used, for an instrument chargeable with
duty, a stamp of a description other than that prescribed for such instrument
by the rules made under this Act, or a stamp of greater value than was
necessary, or has inadvertently used any stamp for an instrument not
chargeable with any duty; or

b) When any stamp used for an instrument has been inadvertently rendered
useless under Section 15, owing to such instrument having been written in
contravention of the provisions of Section 13
Under Section 53, in any case in which allowance is made for spoiled or
misused stamps, the Collector may give in lieu thereof:

 other stamps of the same description and value; or
 if required and he thinks fit, stamps of any other description to the same
amount in value; or
 at his discretion, the same value in money, deducting ten naya paisa for each
rupee or fraction of a rupee
DEBENTURES
A debenture shall be deemed to be renewed in the same terms within the
meaning of this section not with standing the following changes:

a) the issue of two or more debentures in place of one original debenture, the total
amount secured being the same;
b) the issue of one debenture in place of two or more original debentures, the total

CS EXECUTIVE
amount secured being the same;
c) the substitution of the name of the holder at the time of renewal for the name
of the original holder; and
d) the alteration of the rate of interest of the date of payment hereof.
REFERENCE AND REVISION
According to Section 58, if the High Court is not satisfied that the statements
contained in the case are sufficient to enable it to determine the questions
raised thereby, the court may refer the case back to the Revenue Authority for
further feed back. The High Court shall decide the questions raised and give its
judgment to the Authority who shall dispose of the case as per the judgment.

CS EXECUTIVE
E-STAMPING
E-Stamping is a computer based application and a secured way of paying Non
Judicial stamp duty to the Government. The prevailing system of physical
stamp paper / franking is being replaced by E-Stamping system. The benefits

of e-Stamping are as under :
a) e-Stamp Certificate can be generated within minutes;
b) e-Stamp Certificate generated is tamper proof;
c) e-Stamp Certificate generated has a Unique Identification Number;
d) Easy accessibility and faster processing;
e) Security;
f) Cost savings and User friendly.
Government of India, Ministry of Finance, Department of Economic Affairs
appointed SHCIL to act as Central Record Keeping Agency (CRA).
Verification of e-stamping
An e-Stamp can be verified online by clicking on verify e-Stamp certificate and

entering the required details i.e
 State
 Certificate Number (UIN)

 Stamp Duty Type ( Description of Document )
 Certificate Issue Date
 6 character alphanumeric string
UIN is a Unique system generated number mentioned on the e-Stamp
Certificate. Anybody, having the Unique Identification Number, can check the

CS EXECUTIVE
authenticity of the Certificate through www.shcilestamp.com.
Authorised Collection Center(ACC)
ACC means Authorised Collection Center (ACC). Its an agent appointed by
SHCIL. ACC is the intermediary between the CRA and Stamp Duty payer.
Schedule Banks and Post Offices can become ACCs by completing the
registration process.
Mode of Payment of Stamp Duty
The stamp duty may be paid through the following modes:
 Cash
 Cheque
 Demand Draft
 Pay Order
 RTGS
 NEFT
 Account to Account transfer.

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CS EXECUTIVE

Code is to supplement the substantive law contained in Indian Penal Code, by

prescribing the suitable procedure.

Offence {Sec 2(n)}

Following are the four elements which constitute the offence:

❖ Injury to another person

(CS, MBA) SOMYA KATARIA 7.1 CONTACT NO.- 9131993373

“there must be a mind at fault before there can be a crime.”

Bailable and Non- Bailable Offence {Sec 2 (a)}

bailable offence, is a matter of right whereas a Bail, in case of non-bailable

offence, depends upon the discretion of court.

Anticipatory Bail [Section 438]

Anticipatory Bail is a bail which is granted to a person who apprehends arrest

may be arrested on an accusation of having committed a non-bailable offence,

• He shall not threaten the witness so as to make them hostile;

• He shall not leave India without the prior permission of Court.

Cognizable and Non-Cognizable Offences/ Cases {Sec. 2(c) & 2(I)}

(CS, MBA) SOMYA KATARIA 7.2 CONTACT NO.- 9131993373

Cognizable offence means an offence in which a person can be arrested by a

obtain a warrant of arrest from a court, as the offender m ay escape by the

Examples of Cognizable offences are Murder, Dacoity, rape, etc.

Non-Cognizable offence means an offence in which the police can’t arrest a

person without warrant. Non-cognizable offences are less serious in nature as

society is comparatively small.

Examples of non-cognizable offences are simple hurt, undue influence at an

Compliant {Sec. 2 (d)}

Complaint means any allegation made orally or in writing to a Magistrate, with

whether known or unknown, has committed an offence. It may be noted that

report forwarded by a police officer to a Magistrate.

First Information Report (FIR)

(CS, MBA) SOMYA KATARIA 7.3 CONTACT NO.- 9131993373

Investigation, Inquiry and Trail

Investigation {Sec. 2 (h)}:

As per Criminal Procedure Code, investigation is to be conducted always by a

the following steps:

❖ Proceeding to the spot;

❖ Ascertaining of facts and circumstances;

❖ Discovery and arrest of the suspected person; and

Inquiry {Sec. 2 (g)}:

innocence of the person accused of an offence is determined.

(CS, MBA) SOMYA KATARIA 7.4 CONTACT NO.- 9131993373

Thus, a trail ends either in conviction or acquittal.

PLEADER PUBLIC PROSECUTOR

Pleader is one who is authorized to be A public prosecutor is an officer of

It is not essential to be a lawyer to Their work is to conduct prosecutions,

SUMMON CASES AND WARRANT CASES { SEX 2(w) & 2(X)}

Warrant case means a case relating to an offence punishable with death,

imprisonment for life or imprisonment for a term exceeding 2 years.

Further, in a summon case, the court order is directly issued to a person to

(CS, MBA) SOMYA KATARIA 7.5 CONTACT NO.- 9131993373

Arrest without warrant (Sec. 41)

persons can be arrested by a Police Officer without warrant:

❖ Who has been concerned in any cognizable offence;

of the State Government;

❖ In whose possession anything is found which may reasonably or suspected to

escaped, or attempts to escape, from lawful custody;

arrested without a warrant by the officer who issues the requisition.

(CS, MBA) SOMYA KATARIA 7.6 CONTACT NO.- 9131993373

Arrest on refusal to Give Name & Residence

If any person who is accused of committing a non-cognizable offence doesn’t