CRPC

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Cr PC Master doc - Crpc full notes
Criminal Law - II (Christ (Deemed To Be University))
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Appointment of Special JM 5 Investigation by Police

Public Prosecutors 7 • Information to Police
• Power to Investigate
Aid to Magistrate and Police 8
• Procedure
Process to compel 8 • Sending of report
• Order of Investigation
Arrest with(out) warrant
• Attendance and examination of
Arrest how made witness
• Section 161 statement
Post-arrest procedure
• Recording of Statement
Rights of Person arrested • Admissibility of Evidence
• Search by Police officer
Consequences of non-compliance
• Procedure of Search
Summons to Produce • Exclusionary rule
• Investigation within 24 hrs
Search Warrant
• Production of Documents
Security for Keeping peace • Procedure on completion
• Report of Police (chargesheet)
Security for Good Behaviour
Maintenance Complaint to Magistrate 70
• Essential conditions • Proceedings under JM

• Cancellation of Maintenance • Postponement of issue of process
• Alteration in Maintenance • Issue of Process
• Enforcement of Maintenance • Dismissal of Complaint
• Powers of Magistrate
Cruelty to Second wife
Bigamy and consequences Commencement of Proceedings (Mag)
Public Order & Tranquillity • Examination of Complaint

• Dismissal of Complaint
Nuisance
• Issuing Warrant
Urgent cases of Nuisance
Charge 85
• Remedies
• Rationale • Form and Contents
• Powers of Magistrates • Basic Procedure
• Procedure • Amendment of Charge
• Basic Rules
Constitutional validity of S. 144
• Withdrawal

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Trial before Sessions Court Juvenile Justice Act
Trial of Warrant Cases by Mag. • Fundamental Principles

• Meaning and Definition
• Cases instituted on report
• Apprehension & Production
• Cases other than report
• Bail of Juvenile
Trial of Summons Case • JJ Board
• Inquiry under JJ
Summary Trial 100 • Offence and Punishment
• Child care and Protection
Judgment 102
• Child welfare committee
• Language and content • Homes and Institutions
• Metropolitan Magistrate • Rehabilitation
• Post-conviction order • Foster Care
• Cost and Compensation
Case Laws
• Victim compensation
• Victim compensation scheme • A.N Roy v. Suresh Sham Singh
• Criticisms of Sec 357 • Madhu Limaye v. Sub Mag
• M Krishnamurthy v. Sub Mag
Appeal
• Madhu Limaye v. State of Maha
• Rationale of appeal • Medha Patkar v. State of MP
• Supreme Court • Joginder Kumar v. State of UP
• High Court • Sheela Barse v. State of Maha
• Sessions Court • State of Punjab v. Ajab Singh
• Govt. Appeal against sentence • DK Basu v. State of WB
• Judicial Powers in Disposal • Birendra Kumar v. UOI
• Form of appeal • G Kavitha v. UOI
• CBI v. Dawood Ibrahim
Revision
• Raghuvansh Bhasin v. State of
Reference Maha
• K Govind Raj v. Subian
Search and Seizure • Rajnesh v. Neha
• Dilawar Singh v. State of Delhi
Bail and Anticipatory bail
• State of Bihar v. JCS Saldhana
• Mandatory v. Discretionary • Lalita Kumari v. State of UP
• Factors to consider • Sakiri Vasu v. State of UP
• 439 CrPC • Kartar Singh v. State of Punjab
• Circumstances of Mandatory bail • Shivappa v. State of Karnataka
• Anticipatory Bail • K Veerasamy v. UOI
• Conditions for AB • State of Raj v. Balchand
• Vital parameters for AB
• Rules
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1.Definitions
Sec.2(a) “bailable offence” means an offence which is shown as bailable in the First Schedule,
or which is made bailable by any other law for the time being in force; and “non-bailable
offence” means any other offence;
(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in
which, a police officer may, in accordance with the First Schedule or under any other law for
the time being in force, arrest without warrant;
(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a
Magistrate or Court;
(h) “investigation” includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf;
(l) “non-cognizable offence” means an offence for which, and “non-cognizable case” means a
case in which, a police officer has no authority to arrest without warrant;
(n) “offence” means any act or omission made punishable by any law for the time being in
force and includes any act in respect of which a complaint may be made under section 20 of the
Cattletrespass Act, 1871 (1 of 1871);
(u) “Public Prosecutor” means any person appointed under section 24, and includes any
person acting under the directions of a Public Prosecutor
(w) “summons-case” means a case relating to an offence, and not being a warrant-case;
(x) “warrant-case” means a case relating to an offence punishable with death, imprisonment
for life or imprisonment for a term exceeding two years;
2. Constitution of Criminal Courts
Sec. 6 classes of criminal courts as
• Courts of Session;
• Judicial Magistrates of the first class and, in any metropolitan area,
Metropolitan Magistrates;
• Judicial Magistrates of the second class; and
• Executive Magistrates

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The Code, in accordance with the recommendations of the 41st Law Commission, has provided
for the separation of the judiciary from the executive on an all-India basis in order to achieve
uniformity in this matter. Reference to Judicial Magistrates and Executive Magistrates as
constituting separate courts in Section 6, and the subsequent provisions relating to the High
Court's complete and exclusive control over the Judicial Magistrates would indicate the
effective separation of the judiciary from the executive.
two categories of magistrates Judicial Magistrates, and the Executive Magistrates. The former
are under the control of the High Court, while the latter are under the control of the State
Government. Broadly speaking, functions which are essentially judicial in nature are the
concern of the Judicial Magistrates, while functions which are "police" or administrative in
nature are the concern of the Executive Magistrates."
Sec.7 deals with the territorial jurisdiction of crpc. The state can alter the jurisdiction and
increase the number of courts upon consultation with state HC.
Sec.8.deals with metropolitan areas. By notification the state may declare a area with a
population more than 1miilllion as metropolitan arear. It can also declare a place not MA when
its population falls below 1M. All this happen on consultation with HC by State.
Sec.9 deals with court of session, it shall be presided over by a judge appointed by the HC.
High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to
exercise jurisdiction in a Court of Session. The Additional Sessions Judge (or the Assistant
Sessions Judge) exercises the powers of a Court of Session, subject to the limitations 14
prescribed by law, but is not an independent Court of Session.
Sec.10 All Assistant Sessions Judge shall be subordinate to the Sessions Judge in whose court
they exercise jurisdiction.
Sec.11 deals with Courts or Special Courts of Judicial Magistrates of First Class or Second
Class Every district there shall be Courts of JM I- class or 2 – class as many as required
appointed on consultation of HC. Presiding officer will be appointed by HC. Any judge of civil
court may be conferred with powers of JM 1ST class or 2nd by HC if required. This would enable
the High Court to provide for situations where it might not be necessary or possible to appoint
full-time Judicial Magistrates.
Sec.12 in every district (not being MA) there shall be a CJM appointed by HC whose main
function is to supervise and guide others. The HC may appoint any JM of 1st class to be
additional CJM. any Judicial Magistrate of 1st Class in any sub-divisioncan appointed by the
HC as the Sub-Divisional Judicial Magistrate. Subject to the control of the CJM. Shall exercise
supervision and control other JMs other than ACJM.

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Sec.14 states that the CJM may alter jurisdictions upon time to time.
Sec.15 – Every CJM is subordinate of Sessions J and other JM shall also be under the control of
Sessions J. Sub divisional magistrate shall be on the general control of CJM. Shall exercise
supervision and control other JMs other than ACJM.
Sec.16- In Metropolitan cities, Metropolitan magistrates are appointed following the same
procedure. The presiding officer is appointed by HC.
Additional Metropolitan magistrate is also appointed by HC.
Sec.17.19 Chief Metropolitan magistrates are subordinate to Sessions judge. Other MM shall
also be under the control of Sessions J
Sec.13 & 18 Special JM & metropolitan magistrate are appointed on request of state or central
government to confer upon person who holds or held government position with the power of
JM 1st or 2nd class.
Conditions for appointment of Special JM or Metropolitan.
i) The persons to be appointed must be either persons service or retired from government
service;
ii) must have the qualifications and experience as prescribed by the High Court;
iii) The appointment is to be made by the High Court and not by the State Government;
iv) The appointment is to be for a period not exceeding one year at a time;
• Sec.20 - (a) Executive Magistrates are appointed for performing magisterial functions
allotted to the executive. The State Government may appoint as many persons as it
thinks fit to be Executive Magistrates and shall appoint one of them to be the District
Magistrate. any Executive Magistrate may also be appointed as Additional District
Magistrate who shall have such powers of a District Magistrate by the SG. The SG may
place an EM as Sub-divisional magistrate in charge of a subdivision.
• In metropolitan areas, the practice of conferring on a Commissioner of Police some
magisterial powers. The Supreme Court in A.N. Roy v. Suresh Sham Singh held that the
State has power to appoint the Commissioner of Police of Birhan, Mumbai, which is a
metropolitan area as an Executive Magistrate and to further appoint him as an
Additional District Magistrate who shall have the powers of a District Magistrate. The
issue was with respect to the powers of the State Governments, to appoint District
Magistrate
• Sec.21 deals with Special executive magistrates. Sec.22 provides for Local jurisdiction
for executive magistrate by district magistrate.

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• Sec.23 All EM other than the Additional DM, shall be subordinate to the DM, and every
EM (other than the Sub-Divisional Magistrate) shall also be subordinate to the Sub-
Divisional Magistrate and subject to the general control of the District Magistrate. EM
are also subordinate to Court of Session
• Sec.28 & 29. HC may pass any order authorized by law
Public Prosecutors : -
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• The Public Prosecutor or the Assistant Public Prosecutor is the counsel for the State in
such trials. His duties mainly consist in conducting prosecutions on behalf of the State.
The Public Prosecutor also appears as State Counsel in criminal appeals, revisions and
such other matters in the Sessions Courts and the High Courts. The Public Prosecutor
should not appear on behalf of accused. The Public Prosecutor or the Assistant Public
Prosecutor has authority to appear and plead before any court in any case entrusted to
him. [S. 301] with the consent of the court he can withdraw from the prosecution
against any person. [S. 321] He can give advice to the police or other government
departments with regard to the prosecution of any person if his advice is so sought.
• The PP and Additional pp deal with cases in High court and sessions and Assistant PP
deals with cases in the magistrate courts. The definition for pp is given under (u) of
Section 2, Public Prosecutor means "any person appointed under Section 24, and
includes any person acting under the directions of a Public Prosecutor".
• Assistant Public Prosecutors are not covered by this definition they are not appointed
under Section 24; at the same time they have not been defined separately. Appointment
of Assistant PP is dealt with Sec.25
• Appointment of PP in HC is given under Sec.24. The appointing authority can make
the appointment only after consultation with the High Court. The CG & SG can appoint
PP and additional PP for conducting cases in HC or on behalf of the state. Minimum of
7 years of practice is required. The CG OR SG may appoint Special PP who has
experience more than 10 years. It may also on the reason of public interest.
• Appointment of PP in District courts. Minimum of 7 years of practice is required. The
DM shall, in consultation with the Sessions Judge, prepare a panel of names of persons
who may be fit to be appointed as the Public Prosecutor or Additional Public
Prosecutors. If no suitable names in found in the cadre, it may choose names from the
panel. Same PP can be appointed for 2 districts. The CG OR SG may appoint Special
PP who has experience more than 10 years. It may also on the reason of public interest.
• Public Prosecutor should be personally indifferent to the result of the case. His duty
should consist only in placing all the available evidence irrespective of the fact whether
it goes against the accused or helps him, before the court, in order to aid the court in
discovering the truth. It would thus be seen that in the machinery of justice a Public
Prosecutor has to play a very responsible role.

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3.Aid To Magistrate and Police
Duty of public to give info.
Sec.37 - While Sections 39 and 40 require private citizens to give information to the police etc.
of their own, Section 37 requires every private citizen to give reasonable assistance to the
magistrates and police under certain circumstances if such assistance is demanded by a
Magistrate or police.
Sec.38 empowers a private citizen to assist any person other than police officer in an execution
of a warrant directed towards to him.
Sec.39 imposes a duty on general public to give information to certain cases. In this section the
duty to inform is not confined in relation to the specific offences committed in India. Though
the section is very wide in its import, the courts have put reasonable restrictions on its
application. Even though the section every person to give info. However, the words "every
person" cannot be taken to include a person committing or intending to commit an offence. A
person is exempted from the duty to inform if he has reasonable excuse for not giving
information but burden to prove is on the person.
Sec.40 – Even though Sec.39 has created a duty on the part of the public generally to give
information to the police regarding certain offences, Section 40 casts in addition a duty on
village-officers and village-residents to report certain matters to the police or Magistrates. This
is necessary because most of the villages are not within easy reach of the police station having
jurisdiction over the villagers.
4 & 5Arrest and process to compel
Importance of procuring of accused.
It may be stated as a broad principle that the liberty of a person should not be taken away
without just cause. If the presence of the accused at the trial cannot be procured except by arrest
and detention, the accused should by all means be arrested and detained pending his trial;
however, if his presence can be reasonably ensured otherwise than by his arrest and detention,
the law ought not to deprive him of his liberty. Detention before may act as a hinder to
accused’s defense preparation and may lead to unfair trail. All the provisions under CPC are
aimed at ensuring the presence of the accused at his trial without unreasonably depriving him of
his liberty.

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2 ways of procurement of Accused
• By issuing summons to the accused.

• By arrest or detention
The discretion to use which is way is up to the judicial officer, even though they are controlled
by the code to an extent.
The Code classifies all criminal cases into summons cases and warrant cases. A "warrant
case" means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years; and a "summons case" means a case relating to
an offence, and not being a warrant case. A warrant case relates to a serious offence while a
summons case relates to a comparatively less serious crime.
The Code therefore gives the general direction that in a summons case a summons is to be
issued to the accused in the first instance and in a warrant case a warrant of arrest is normally to
be issued for the arrest of the accused. The Code, however, gives discretion to the Judicial
Officer to depart from this general rule if the circumstances so demand in a particular case. The
relevant provisions in this connection are contained in Section 204 and Section 87.
It will be seen from Section 204(1) that while in a summons case the Magistrate concerned
shall issue a summons, in a warrant case he may issue a warrant or (if he thinks fit) a summons.
This is further indicated by Section 87 which, while empowering a court to issue a warrant in
lieu of, or in addition to summons in certain circumstances, requires the court to record reasons
for doing so. Illegal." Even if one takes the view that the provision in Section 87 for recording
reasons is only directory and not mandatory.
Sec.61 of the code states the meaning of summons and prescribes the form by which the
summons must be issued. The court also allows accused to represent by his pleader as Sec.205
of the code.
They mode of service are desalts in the sections of Sec.62-67.
Sec.62.
(1) Every summons shall be served by a police officer, or subject to such rules as the
State Government may make in this behalf, by an officer of the Court issuing it or other public
servant
(2) The summons shall, if practicable, be served personally on the person summoned, by
delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving
officer, sign a receipt therefore on the back of the other duplicate.
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Sec.63 deals with serving of summons to corporate bodies.
Sec.64 states that the when to whom the summons issued is not found, then the duplicate must
served to some adult male member of his family residing
Sec.65 deals with a scenario where none of the above mentioned sec was not applicable. Then
they either leave in a conspicuous part of the area or the court may consider the summons is
duly served.
Sec.66 deals with the scenario of summons to government officials. Where it will be served to
the head of the office.
Sec.67 states to procedure to serving of summons outside local jurisdiction.
Sec.68 deals with the proof of service either by serving officer or by an affidavit.
Arrest with or without warrant
Arrest may be necessary not only for the purpose of securing the attendance of the accused at
the time of trial, but it may become necessary as a preventive or precautionary measure too.
Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty.
The Code contemplates two types of arrests:
• arrest made in pursuance of a warrant issued by a Magistrate; and

• arrest made without such warrant but made in accordance with some legal provision
permitting such arrest.
A warrant of arrest is a written order issued and signed by a Magistrate and addressed to a
police officer or some other person specially named, and commanding him to arrest the body of
the accused person named in it.
Though the Code allows a person to be arrested without warrant under certain circumstances, it
does not allow such arrested person to remain in custody for more than 24 hours from the time
of arrest. Further detention of the arrested persons shall be illegal unless permitted by a
competent Judicial Magistrate.
A warrant of arrest must have these essentials such as
• Authority given by a competent Magistrate for the arrest of a person.

• It must be in writing and must have been signed and sealed by a Magistrate or court.
• It must clearly mention the name and other particulars of the accused and the offence
with which he is charged.

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• The warrant must necessarily show clearly the person to whom the authority to arrest
has been given.
All this has been given in sec.70 to 73.
Sec.71 deals with sureties wrt to accused. The essentials are
It must be a warrant for arrest. If the accused executes the bond with required number of
sureties for his attendance before the specified time by the court, the accused can be
released from custody. This sureties endorsement shall state
(a) the number of sureties;
(b) the amount in which they and the person for whose arrest the warrant is issued,
are to be respectively bound;
(c) the time at which he is to attend before the Court.
• Sec.77 to 81deals with mode of execution of warrant

• Sec.77 states that a warrant of arrest can be executed anywhere outside India.
• Sec.78 to 81 deals with procedure of execution of warrant outside the jurisdiction.
Sec. 78 states that when a warrant to arrest to be executed outside its jurisdiction. The same
shall be sent o the EM or DSP or commissioner to the indented jurisdiction via post.
Sec.79 states that if the warrant is directed t same jurisdiction officer to be executed outside
the jurisdiction then the same must be endorsed by EM or police officer
Sec.80 states that if the warrant is executed outside the jurisdiction. Then the accused must
be produced to the magistrate of that jurisdiction unless the warrant issued court is within
30 Km of the place the execution took place.
Arrest without warrant.
Under circumstances may require a person to be arrested without warrant if such person is
reasonably suspected to have committed a serious (cognizable) offence. Wide powers have
been conferred on the police for making arrests without warrant under circumstances
mentioned in Sections 41 and 42.
Under sec.41 the situations where a person can be arrested without a warrant are

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A person
• Who commits a cognizable offence before police.

• Against whom a reasonable complaint is received that eh committed offence which
may be punishable by less than 7 or 7 or more than 7.
the police office is satisfied that such arrest is necessary
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person to cause damage to evidence
(d) to prevent such person from making any inducement, threat or promise to any
witness
(e) as unless such person is arrested, his presence in the Court whenever required cannot
be ensured.
• Who is proclaimed offender

• Found with possession of any stolen property.
• Obstructs police officer from discharging his duties
• Who is deserted from any armed forces
• Areleased convict who violates rules unde sec.356
• Any request from police of other jurisdiction to arrest him.
Sec.42 allowsthe police to arrest a person who committed an NCO before him on the
ground of refusal to give name and address.
Sec. 41- A imposes duty on police to record reasons for not arresting a person.
Sec. 41-B states the duty of the police during the procees of the arrest such as
identification, preparation of memo. Attestation by witness
Sec.41- C states about having control rooms in all districts.
Sec. 41-D gives righ to a arrested person to meet a advocate during interrogation.
Guidelines on arresting judicial officer are give in the case of Delhi Judicial Service
Assn. v. State of Gujarat,
The Supreme Court has had occasion to lay dowr the following guidelines for the police
while arresting a judicial officer:

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• A judicial officer should be arrested for any offence under intimation to District
Judge or the High Court.
• In case of necessity for immediate arrest only a technical or formal arrest may be
effected.
• The fact of such arrest should be immediately communicated to the District and
Sessions Judge of the district concerned and the Chief Justice of the High Court.
• The judicial officer so arrested shall not be taken to a police station, without the
prior order or directions of the District and Sessions Judge of the concerned
district, if available.
• Immediate facilities shall be provided to the judicial officer for communication
with his family members, legal advisers and judicial officers, including the
District and Sessions Judge.
• No statement of a judicial officer who is under arrest be recorded nor any
panchmama be drawn up nor any medical tests be conducted except in the
presence of the Legal Adviser of the judicial officer concerned or another
judicial officer of equal or higher rank, if available.
• Ordinarily there should be no handcuffing of a judicial officer.
Sec.43 gives private persons to arrest without a warrant. The power of arrest without
warrant given by this section can be exercised only in respect of an offence which is
both non-bailable and cognizable.
Sec.44 empowers a magistrate to arrest under 2 circumstances
1) If any offence is committed in his presence. Magistrate can himself or with the help
of others can arrest the person committing the offence;
2) even if no such offence is committed in the presence of such Magistrate, but if the
Magistrate is competent to issue a warrant for the arrest of any person, and the person is
present before him, he can arrest such person.
Arrest how made
Sec.46 states the manner in which arrest should be effected.
• The arrest should be made by touch and confining the body unless there is a submission
to the custody.
• If such person tries to evade, the arresting person may use all measn to prevent the same
and arrest

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• But this section does not five right to cause death to any accsued other than who are
accused of offences with the punishment of life imprisonment or death penalty.
Additional powers are given to effect arrest.
According to Section 47 an occupier of a house is under a legal duty to afford to the police all
the facilities to search the house for the purpose of making arrests. If it is denied or obstructions
the section allows the officer to use force for getting entry into the house for search and also for
the purpose of liberating himself in case be is detained in the house.
Section 48 provides that a police officer may, arrest or pursue such person into any place in
India. A police officer's power to arrest is ordinarily limited to the police district, but this power
has been supplemented by Section 48 of the Code.
Under Sec.55 a senior police officer may require subordinate police officer to arrest and the
subordinate should follow the same
Under sec. 60 the person is empowered to re - arrest from whose custody he escaped or was
rescued in any place in India. Such re arrest allows them to have the same powers of sec.46 and
49.
Post arrest procedures
Sec.51 empowers a police officer to make a search of the arrested person under certain
circumstances. Such search may prove useful for proper investigation. If incriminating things or
stolen articles are found in such search, the police officer can seize them.
The rules under police act mandates to have a witness during the search. After search all the
articles, it has been made obligatory to give the arrested person a receipt showing the articles
taken in possession by the police. This would ensure that the articles seized are properly
accounted for.
Sec.52 empowers the police to seize offensive weapons. The seize can be made any by any
person making the arrest.
Section 53 empowers senior police officers to compel the accused person in custody to submit
to medical examination. The question might arise as to whether this provision is violative of the
constitutional privilege against self-incrimination was considered in the decision of the
Supreme Court in State of Bombay v. Kathi Kalu Oghad (Kathi Kalu) which held that
Section 53 is not violative of Article 20(3) and that a person cannot be said to have been
compelled "to be a witness" against himself if he is merely required to undergo a medical
examination in accordance with the provisions of Section 53.
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Sec.54 A allows for examination of arrested person by medical practitioners
Sec. 54 Allows for identification of the accused arrested.
Sec.58 imposes a duty on police to send reports to magistrate on the arrested persons.
Sec. 59 states that no person shall not be released unless bond or bail is paid.
Right of the person arrested
• Right to know the grounds of arrest- Sec. 50(1), 55 & 75
Apart from these provisions of the Code recognising the right to know the grounds of arrest,
our Constitution has also conferred on this right the status of a fundamental right. Article 22(1)
of the Constitution. Article 22(1) embodies a rule which has always been regarded as vital and
fundamental for safeguarding personal liberty in all legal systems where the rule of law
prevails.
The rules emerging from decisions such as Joginder Kumar v. State of Ups and D.K Banu v.
State of WB 49, referred to infra have been enacted in Section 50-A31 making it obligatory on
the part of the police officer not only to inform the friend or relative of the arrested person
about his arrest etc. but also to make an entry in a register maintained by the police. The
Magistrate is also under an obligation to satisfy himself about the compliance of the police in
this regard.
• Information regarding the right to be released on bail-Sec.50(2)
This will certainly be of help to persons who may not know about their rights to be released on
bail in case of bailable offences. As a consequence this provision may in some small measure,
improve the relations of the people with the police and reduce discontent against them..
• Right to be taken before a Magistrate without delay. – Sec.56 & 76
The person making the arrest must bring the arrested person before a judicial officer without
unnecessary delay. It is also provided that the arrested person should not be confined in any
place other than a police station before he is taken to the Magistrate. These matters have been
provided by Sections 56 and 76
• Right of not being detained for more than 24 hours without judicial scrutiny -
Sec.57

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Whether the arrest is without warrant or under a warrant, the arrested person must be brought
before the Magistrate or court within 24 hours. the right has been further strengthened by its
incorporation in the Constitution as a fundamental right. Article 22(2) of the Constitution.
The right to be brought before a Magistrate within a period of not more than 24 hours of arrest
has been created with a view :
• to prevent arrest and detention for the purpose of extracting confessions, or as a means
of compelling people to give information;
• to prevent police stations being used though they were prisons- a purpose for which
they are unsuitable;
• to afford an early recourse to a judicial officer independent of the police on all
questions of bail or discharge
As per Sec 57, the words "special order of a Magistrate under Section 167" refer to the power
of the Magistrate to order detention in police custody for a limited period in order to facilitate
police investigations. Article 22(2), on the face of it, appears to apply to cases of arrests without
warrant as well as of arrests under a warrant.
However in State of Punjab v. Ajaib Singh, the Supreme Court has observed that the said article
relates to arrests without warrant only. The court felt that in case of an arrest on a warrant the
judicial mind had already been applied to the need for arrest and that there was no need to
provide any safeguard in absolute terms. This view has been criticized to be unreasonable and
wrong.
• Right to consult a legal practitioner Article 22(1) of the Constitution & Sec.303
It provides that no person who is arrested shall be denied the right to consult a legal practitioner
of his choice. Further, as has been held by the Supreme Court the State is under a constitutional
mandate (implicit in Art. 21) to provide free-legal aid to an indigent accused person. Section
303 also provides that any person against whom proceedings are instituted under the Code may
of right be defended by a pleader of his choice.
• Right to be examined by a medical practitioner Section 54. This section empowers

the court to get the arrested person medically examined.
According to the Supreme Court, the arrested accused person must be informed by the
Magistrate about his right to be medically examined in terms of Section 54.
In order to have transparency in the accused police relations the Supreme Court in Joginder
Kumar v. State of UP formulated the following rules:

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• 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
• The police officer shall inform the arrested person when he is brought to the police
station of this right
• 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) enforced
strictly
The frequent instances of police atrocities and custodial deaths have prompted the Supreme
Court to have a review of its decisions like Joginder Kumar, issue some instructions in D.K.
Bass, to be followed in all cases of arrest or detention.
Consequences of non-compliance with the provisions relating to arrest
• A trial will not be void simply because the provisions relating to arrest have not been
fully complied with. The question whether the police officer making the arrest was
acting within or beyond his powers in effecting the arrest, does not affect the question
whether the accused person was guilty or not guilty of the offence with which he is
charged.
• Though the illegality or irregularity in making an arrest would not vitiate the trial of the
arrested person, it would be quite material if such person is prosecuted on a charge of
resistance to or escape from lawful custody.
• If a private person attempts to make an illegal arrest, the person against whom such
attempt is made has every right to protect himself and to exercise his right of private
defence in accordance with the provisions contained in Sections 96 to 106 IPC.
• If the person making an illegal arrest is a police officer or a public servant, then the
right of private defence against such police officer or public servant will not be as wide
as it is against a private person, and would be subject to the restrictions contained in
Section 99 IPC.
• If a public servant having authority to make arrests, knowingly exercises that authority
in contravention of law and effects an illegal arrest he can be prosecuted for an offence
under Section 220 IPC.
• If the arrest is illegal, it is a sort of false imprisonment and the person making such
arrest exposes himself to a suit for damages in a civil court.

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6. PROCESSES TO COMPEL THE PRODUCTION OF THINGS
A) SUMMONS TO PRODUCE
91. Summons to produce document or other thing

- If a Court/ officer in charge of a police station considers that the production of any
document/ other thing is necessary/desirable for investigation, inquiry, trial the Court
may issue a summons, or such officer a written order, to the person who possesses or
has power over such document requiring him to attend and produce it, or just to produce
it, at the time and place stated in the summons or order.
93. When search-warrant may be issued

- Court has reason to believe - a person to whom a summons order or a requisition has
been, or might be, addressed, will not or would not produce the document or thing as
required or
- where such document or thing is not known to the Court to be in the possession of any
person, or
- where the Court considers a general search or inspection will be useful, it may issue a
search-warrant;
- the person to whom such warrant is directed, may search or inspect
- The Court may specify in the warrant the particular place to which only the search or
inspection shall extend; and only that place shall be searched or inspected.
94. Search of place suspected to contain stolen property, forged documents, etc.
- If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has
reason to believe that any place is used for:
● the deposit or sale of stolen property
● deposit, sale or production of any objectionable article
● or that any such objectionable article is deposited in any place,
- he may by warrant authorise any police officer above the rank of a constable —
- (a) to enter, with such assistance as may be required, such place,
- (b) to search the same in the manner specified in the warrant,
- (c) to take possession of any property or article therein found which he reasonably
suspects to be stolen property or objectionable article to which this section applies,
- (d) to convey such property or article before a Magistrate, or to guard the same on the
spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some
place of safety,

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- (e) to take into custody and carry before a Magistrate every person found in such place
who appears to have been privy to the deposit, sale or production of any such property
or article knowing or having reasonable cause to suspect it to be stolen property or, as
the case may be, objectionable article to which this section applies.
- The objectionable articles to which this section applies are—
- (a) counterfeit coin; (b) pieces of metal made in contravention of the Metal Tokens Act,
1889 (1 of 1889), or brought into India in contravention of any notification for the time
being in force under section 11 of the Customs Act, 1962 (52 of 1962); (c) counterfeit
currency note; counterfeit stamps; (d) forged documents; (e) false seals; (f) obscene
objects referred to in section 292 of the Indian Penal Code (45 of 1860); (g) instruments
or materials used for the production of any of the articles mentioned in clauses (a) to (f).
97. Search for persons wrongfully confined

- If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has
reason to believe that any person is confined under such circumstances that the
confinement amounts to an offence, he may issue a search-warrant.
- If the person is found, he shall be immediately taken before a Magistrate, who shall
make such order as in the circumstances of the case seems proper.
98. Power to compel restoration of abducted females - through search warrant as

explained above.
100. Persons in charge of closed place to allow search

- If a place liable to search/ inspection is closed, any person residing in, or being in
charge of, such place, shall, on demand of the officer or other person executing the
warrant, and on production of the warrant, allow him free ingress and reasonably
facilitate.
- If not the officer or other person executing the warrant may proceed in the manner
provided by sec 47(2)
- Upon reasonable suspicion of concealing about his person any article for which search
should be made, such person may be searched and if such person is a woman, the search
shall be made by another woman with strict regard to decency.
- Before making a search the officer or other person about to make it shall call upon two
or more independent and respectable inhabitants of the locality in the place to attend and
witness the search and may issue an order in writing to them or any of them to do so.
Refusal to cooperate - shall be deemed as an offence under section 187 of the Indian
Penal Code.

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- A list of all things seized and of the places in which they are found shall be prepared by
such officer or other person and signed by such witnesses; - this list to be delivered to
the person searched.
- The occupant of the place searched, or some person in his behalf, shall, in every
instance, be permitted to attend during the search, and a copy of the list prepared under
this section, signed by the said witnesses, shall be delivered to such occupant or person.
102. Power of police officer to seize certain property

- Any police officer may seize any property which may be alleged or suspected to have
been stolen, or which may be found under circumstances which create suspicion of the
commission of any offence.
- Must be reported to Magistrate - who shall give orders about its disposal
103. Magistrate may direct search in his presence

104. Power to impound document, etc., produced (before it)
105. Reciprocal arrangements regarding processes - go through section
7. SECURITY FOR KEEPING PEACE
1. In a case wherein it is likely that a person is going to be convicted of an offence that is

likely to cause the breach of peace, then the court may, at the time of passing the
sentence on such a person, order him to e[ecute a bond with/without sureties for
keeping the peace during such a period, for a ma[imum period of three years. [S
106(2)]
2. Section 107- In other cases wherein it is likely that a person is going to commit an
offence which is going to cause a breach of peace or disturb public tranquillity, Executive
Magistrate, can on reasonable cause, require the person to show cause stating why he
should not be ordered to e[ecute a bond with or without sureties, for keeping the peace
during a specific period, subject to a ma[imum period of one year. The Executive
Magistrate ca cause proceedings for both, a person who is apprehended of causing
disturbance within his jurisdiction or beyond his territorial jurisdiction.
3. This chapter of the CrPC essentially is a case of preventive justice, which is in aid of
creating an orderly society. The objective in this section is preventive and is not punitive
in nature. It is to be used in conditions wherein there are emergencies that warrant quick
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action, with wide powers being vested in the E[ecutive Magistrate. Sine qua non for
proceedings under Section 107 is that the E[ecutive Magistrate is convinced of the
existence of sufficient cause against the person, which the Magistrate is bound to record
u/s 111.
4. It is the duty of the magistrate to keep peace in his jurisdiction, and therefore, he has been
vested with absolute and unqualified discretion under these sections. While forming an
opinion that there is sufficient grounds for proceedings u/s 107, he is to be guided by
the information that has been received by him. It is not necessary to gather all such
information from legal evidence, and can be gathered from any public or private
source. The information may even come from non-remote past acts or wrongful conduct,
which can be related to the present apprehension, and the overall approach is to be
empirical and not abstract.
5. The information is however, required to be clear, and definite and directly affect the
person against whom proceedings are being initiated, and magistrate must disclose the
tangible facts so that sufficient notice may be given to the person. The Magistrate cannot
discover the information on his own, and the manner provided in section 111 is to be
clearly followed.
a. Procedure under section 111- order is to be made in writing, setting forth the
substance of the information that has been received, the amount of bond, term for
which it is to remain in force, and the number, character and class of sureties.
Failure to comply- vitiate the order passed, and thereon the proceedings as well.
b. If there is apprehension of disruption of peace with regards to a dispute about land,
proceedings are under Section 145 and not u/s 107.
c. Pre-requisites to gain jurisdiction-
i. Place where the breach of peace is apprehended is within the territorial
jurisdiction of the magistrate.
ii. The person who is apprehended of causing the disturbance resides in his
jurisdiction irrespective of the place in which the actual breach of peace
is bound to occur.
d. Previous convictions or trials with regards to the same question would not bar
from another proceeding for the same crimes. The provision is usually not meant
to be used as a parallel proceeding.
SECURITY FOR GOOD BEHAVIOUR- SECTIONS 108-110

1. 108- for disseminating seditious matters- EM gets information that within local

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jurisdiction there is such a person who is attempting to disseminate information

wither orally or in a written format and magistrate is of opinion that there is
sufficient grounds for proceeding-
a. Punishable u/s 124-A (sedition), 153-A, 153-B, 295-A of IPC.
b. Any matter concerning a judge acting or purporting to act in official
duties amounting to criminal intimidation or defamation.
c. Makes, publishes, produces, keeps for sale, imports, e[ports, conveys, etc to
put into circulation any obscene matter
Then the magistrate can issue show cause asking why proceedings should not
be conducted, and thereon execute a bond for good behaviour. No proceedings
under this section against proprietor, editor, printer or publisher o2 any
publication which is published in conformity with the rules under Press and
Registration of Books Act.
2. 109- proceedings against suspected persons- if a EM is of the belief that there is

a person in his jurisdiction who is taking precautions to conceal his presence,
and he is doing so to commit a cognizable offence, then he may require the person
to show cause as to why he should not be asked to e[ecute a bond, with or without
sureties, for good behaviour for a period not e[ceeding one year. Objective- is to
check and control persons who are likely to commit offences. 109 is a very stringent
measure, and should be applied carefully. The term "conceals presence" has been
noted to be very wide, and does not need to be the complete concealment of the
person, and even the concealment of the face while using a mask is deemed to be
enough.
3. 110- proceedings against habitual offenders- EM receives information about a person

who is-
a. Habitual robber, thief, house-breaker, forger.
b. Habitually receives stolen property with knowledge.
c. Habitually protects and harbours thieves, or aids in the concealment of stolen
property.
d. Commits, abets offence of kidnapping, abduction, e[tortion, cheating or
mischief.
e. Habitually commits, attempts or abets the commission of offences which
are in the breach of peace .
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f. Commits offences under Drugs and Cosmetics Act, FEMA, EPF, ECA,
Customs act amongst others in the list.
g. Desperate and dangerous as to render his being free without security hazardous
to the society.
EM can ask person to show cause as to why he should not be ordered to e[ecute a
bond with sureties for a period not e[ceeding 3 years.
PROCESS TO FOLLOW FOR INITIATING ACTIONS OR THE ABOVE

CONDITIONS-
1. Order requiring the respondent to show cause - make an order in writing - needs
to set forth the substance of the facts, the amount of the bond, and the term for
which it is to be in force. (111) "substance of information" - the essence of the
most important parts. This is to give the person being proceeded against,
sufficient information about the charges raised against him.
2. Communication of the order- it needs to be read to the person if the person is
present in the Court, and the substance of the order is to be e[plained to him.
(112) order not being read out is an illegality and vitiates the proceedings under
this chapter.
3. If the person is not present in the court, then the EM is to issue summons
requiring the person to appear, and if the person is in police custody, then the
information shall be relayed to the officer in whose custody the person is, to
bring the person before open court. If the EM is convinced that the fear of
commission of an act in breach of peace, and the breach cannot be prevented
without the arrest, an arrest warrant can be issued aga8inst such a person. (113)
Warrant of arrest to only be issued on report of police officer or some other actual
information being received, and the power to issue a warrant is very limited in
these cases. On summons being issued, if the person fails to appear before the
court, then a warrant of arrest may be issued u/s 87. every warrant of arrest made
herein, is to be attached to the order of the court, and shall be served by the
respective officer (114)
4. Personal attendance may not be required if sufficient cause can be showed to the
court and may allow him to appear through a pleader. (115)
5. When the person is brought before the EM, the truth about the information shall
be enquired by the EM and is allowed to take on further evidence as may be
necessary. The inquiry, as far as possible, should be conducted according to the
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provisions mentioned for trial by a summons court. After the commencement of

the inquiry, and before the completion of the inquiry, if the EM feels that it is
necessary that immediate measures be taken for the protection of peace, public
tranquillity or public safety, for reasons recorded in writing, the EM can direct
the e[ecution of the bond till the inquiry is over. (116)
6. If there are 2 or more persons facing charges, separate or same inquiry, and the
inquiry is to be completed within a time period of 6 months from the dat of
commencement of the inquiry, and if not completed, the process will terminate,
but can be extended for reasons to be recorded in writing. If such proceedings are
e[tended beyond the period of 6 months, then an application may be made to the
Sessions Judge, who can vacate the direction to e[tend if it is found out that such
directions to e[tend do not have specific reasons, or that the reasons are perverse.
(116)
8. MAINTENANCE
● Section 125 CrpC provides for an order for maintenance of wives,
children and parents.
● Maintenance is only available to a legally wedded wife
● Maintenance is an amount payable by the husband to his wife who is unable to

maintain herself either during the subsistence of marriage or
upon separation or divorce.
The section states that, If any person having sufficient means neglects or refuses to
maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,

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Judicial Magistrate of First Class has jurisdiction
The definition of wife under this section is extended. For the reasons for this section,
Explanation (b) to S.125 (1) defines wife as, “wife” includes a woman who has been
divorced by, or has obtained a divorce from, her husband and has not remarried. This
extended definition of wife has been considered necessary in view of some personal
laws that allows the husband to divorce the wife any time at will. The inclusive definition
of wife is intended to prevent the unscrupulous husbands frustrating the legitimate
maintenance claim of their wives by just divorcing them. This is aimed at securing social
justice to women.
Essential Conditions for Granting Maintenance
Maintenance under Cr.P.C is not granted to everyone and under any circumstances. The
code, under Section 125, vests the right to claim maintenance only upon the wife, minor
children, unmarried daughter and parents and under special circumstances which are as
follows:
1. Sufficient means to maintain:
According to Sec 125(1), maintenance can be claimed from a person only if he has
"sufficient means" to maintain the person or persons claiming such maintenance. The
expression "sufficient means" is subjective since sufficient for one may not be sufficient
for another. Also, the term "means" may include money, property, business etc. which
has also not been specified by the law.
Therefore, to fill the vacuum created by the absence of any legal explanation with this
regard, the courts have clarified the meaning and extent of each of these words.
In Chandrapal v. Harpyan, the court held that 'means' of a person "does not mean the
tangible property or sources of income of the husband". The court implied that it included
even the ability of the person to earn and maintain his family. This was said in most clear
terms in Chander Prakash v. Sheila Rani.

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The court held that "if a man is healthy and 'able-bodied' he must be held to possess the
means to support his wife, children and parents". These cases establish the rule that a
person cannot evade his responsibility to maintain his dependants claiming his insolvency
or joblessness.
It must include social factors such as "opportunity to earn, education or experience in a

field to be able to work and also includes finance". In Ali Hossain v. Baby Farida
Khatoon, the court observed that when it is said that a person is able-bodied, it is
presumed that he is able to pay maintenance and the court must take into account every
piece of evidence required before deciding the quantum of maintenance to be paid,
2. Neglect or Refusal to Maintain:
Sec 125 (1) states that there must be clear dereliction or refusal to maintain the claimant
on the part of the respondent. Such neglect or refusal can be expressed or implied and by
words or by conduct. The scope of neglect or refusal depends upon who the claimant is.
For instance, in case the claimant is a wife, neglect or refusal will mean something more
than a mere failure or omission.
The husband must in clear words deny the maintenance to the wife or make it difficult for
her to live in that house. However, in case of a minor child who is not able to exercise his
will or has no volition of itself, mere failure or omission may amount to neglect or
refusal. The same was observed by the Andhra Pradesh High Court in Chand Begum v.
Hyderbaig.
The courts have inclined towards a liberal interpretation of the expression "neglects or
refuse to maintain". No straight jacket formula can be established to determine whether
the wife or any other claimant could successfully prove that the person neglected or
refused to maintain him/her. In Sahu v. Khagyodhar Sahu, the court averred that it shall
depend upon the facts and circumstances of each case.

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3. A person claiming Maintenance must be unable to maintain itself:

The provisions under Sections 125 to 128 are civil in nature. They have been
incorporated in criminal law with the sole intention to provide speedy and inexpensive
justice that will prevent vagrancy and augmented crime owing to such vagrancy. Now, a
wife who has been gifted a huge amount of wealth by her father along with a residential
apartment, cannot claim that she has a right to maintenance because her husband refused
to maintain her.
Like any other provision under the Criminal Procedure Code, this provision also needs to
be used wisely and to bring the other party to justice and not to cause gains or profits to
the suffering party. Thus, the applicant's inability to maintain himself/herself is the sine
qua non for the grant of maintenance under Sec 125.
Now, unable to maintain herself in Sec 125 (1) (a) does not mean that the wife should be
"absolute destitute and should be on the street, should beg and be in tattered clothes"[10].
The expression connotes that the person has no other sufficient means to maintain
himself/herself than the person against whom the maintenance is claimed. The inability to
maintain oneself has nothing to do with the earning capacity of the claimant.
There are no specific criteria to determine the inability of the claimant under this
provision. In Shanyani Haidar v. Bharati Haidar, the court asserted that "the statement
of the wife that she has been able to survive with great difficulty is sufficient compliance
of Section 125 CrPC".
In Rewati Bai v. Jageshwar, ordering allowance of Rs. 350/- per month to the wife, the
M.P. High Court observed that the fact that she was compelled to work as a labourer to
survive was by itself not sufficient to establish that the applicant was able to maintain
herself.
To claim maintenance under this provision, the applicant must categorically aver in the
application that s/he is unable to maintain her/himself. However, failure to add in the
petition about the inability of the claimant does not become the sole reason for violating
the trial.
In Mohinder Singh v. Joginder Kaur, the wife filed an application for maintenance
under $125 but did not mention about her inability to maintain herself in the petition. At
the time of taking evidence, however, it was brought out that the wife was unable to
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maintain herself and so the magistrate granted her claims which were also upheld by the
Hon'ble High Court.
4. Special Conditions when Maintenance is claimed by wife:
Under Section 125 (4), two exceptions to the grant of maintenance have been provided
specifically when the applicant is the wife. According to this section, the husband will be
exempted from maintenance if the wife has maintained "outright adulterous conduct and
she is in a quasi permanent union with the man with whom she is committing adultery".
Also, if the wife refuses to live with the husband under the same roof without any
reasonable ground, she cannot be said to possess the right to maintenance. In Saygo Bai
v. Chueeru Bajrangi, the court said that if the husband has contracted a second marriage
or keeps a mistress, it shall be considered to be a just ground for the refusal of the wife to
stay with him. The court held that no wife with any self-esteem will ever bear the pain of
keeping with the mistress of her husband.
Case Laws
D. Velusamy v. D. Patchaiammal, (2010)
The court in this case held that “Wife” in Section 125 CrPC means a legally wedded wife
and also includes a divorced wife.
Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, (1988)

Only a legally wedded wife is entitled to maintenance. A Hindu woman marrying a Hindu
male having a living wife, is not entitled to maintenance asthis marriage is void.
Is an earning wife entitled to maintenance?

The assertion that the wife is unable to maintain herself is enough. The burden of
proof is on the husband to prove that it is not so. Wife having a school of her own
and possessing wet lands is in a better financial position than husband who is not
doing well in his profession and has no land.
Hence, it is unnecessary to pay any maintenance to the wife, Rosy Jacob v. Jacob A.
Chakramakkal, (1973)
• Wife’s income to be accounted for determining maintenance

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Wife’s income has to be taken into account while determining the amount of maintenance
payable to her. It is not an absolute right of a neglected wife to get maintenance nor it is an
absolute liability of husband to support her in all the circumstances, Bhagwan Dutt v.
Kamla Devi, (1975)
Anup Varadpande v. Anusha Varadpande (2010)
The court in this case held that if the wife was not in service during subsistence of the
marriage and took up the job only after separation, her income will not be deducted from
the amount of maintenance granted to her
Tejaswini v. Aravinda Chandra (2010)

In this case the court held that where the wife had some earning but found to be insufficient
and the husband was earning substantial salary, he was held liable to pay some amount
to the wife.
Provided further that if such person offers to maintain his wife on condition of her living
with him, and she refuses to live with him, such
● Explanation.- If a husband has contracted marriage with another woman or

keeps a mistress, it shall be considered to be just ground for his wife's refusal to
live with him.
● (4) No allowance: if she is living in adultery, or if, without any sufficient reason,
she refuses to live with her husband, or if they are living separately by mutual
consent.
CANCELLATION OF ORDER OF MAINTENANCE

1. On proof that-
➢ She is living in adultery,

➢ or that without sufficient reason she refuses to live with her husband,
➢ or that they are living separately by mutual consent, S.125 (5)
2. The woman after the date of such divorce has remarried, the order for
maintenance would be cancelled from the date of such remarriage S.127 (3)(a)
3. Voluntarily surrenders her right for maintenance after her divorce S.127 (3) (c) the
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Magistrate shall cancel the order.
Is strict proof of marriage a sine-qua-non u/s.125
Kamala vs M.R.Mohan Kumar on 24 October (2018)

Respondent refused to pay maintenance under Section 125 of CrPC on the ground
that there was that there was no valid marriage between the parties and hence petition
for maintenance under Section 125 CrPC could not be maintained. The court held
that there was a valid marriage between the parties and moreover a strict proof of
marriage was not a pre-requisite for claiming maintenance under Section 125 of
CrPC.
The court further stated that such strict standard of proof is not necessary as it is
summary in nature meant to prevent vagrancy.
Dwarika Prasad Satpathy v. Bidyut Prava Dixit (1999)

Section 125 does not really determine the rights and obligations of the parties as the
section is enacted with a view to provide a summary remedy to neglected wives to
obtain maintenance. That when the parties live together as husband and wife, there is
a presumption that they are legally married couple for claim of maintenance of wife
under Section 125 CrPC. That it is fairly well settled that the law presumes in favour of
marriage and against concubinage when a man and woman have cohabited
continuouslyfor a number of years.
Lalita Toppo v. State of Jharkhand (2018)

The court in this case held that a woman in a live-in relationship has an efficacious
remedy to seek maintenance under Protection of Women from Domestic Violence Act,
2005 even if it is assumed that she is not entitled to the same under Section 125 CrPC.
The victim would be entitled to more under Domestic Violence Act than the relief that
could be claimed under Section 125 CrPC.
Indra Sarma v. V.K.V Sarma, (2013)

This case dealt with a situation when the women knowingly enters in a live- in
relationship with a married man. The court held that all live-in relationships are not
relationships in the nature of marriage. There has to be some inherent/ essential
characteristic of marriage though not a marriage legally recognised. A live-in
relationship between an unmarried woman knowingly entering into relationship with a
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married male cannot be termed as a relationship in the “nature of marriage” and her
status would be that of a concubine or mistress and therefore is not entitled to
maintenance.
ALTERATION IN ALLOWANCE – SECTION 127:
On proof of a change in the circumstances of any person, receiving, under section

125 a monthly allowance, or ordered under the same section to pay a monthly
allowance to his wife, child, father or mother, as case may be.
The Magistrate may make such alteration in the allowance he thinks fit: Provided that
if he increases the allowance, the monthly rate of five hundred rupees in the whole shall
not be exceeded.
Where it appears to the Magistrate that, in consequence of any decision of a competent

Civil Court, any order made under section 125 should be cancelled or varied, he shall
cancel the order or, as the case may be, vary the same accordingly.
Where any order has been made under section 125 in favour of a woman who has
been divorced by, or has obtained a divorce from, her husband, the Magistrate
shall, if he is satisfied that-
a. The woman has, after the date of such divorce, remarried, cancel such order as
from the date of her remarriage;
b. The woman has been divorced by her husband and that she has
received, whether before or after
the date of the said order, the whole of the sum which, under any customary or
personal law applicable to the parties, was payable on such divorce, cancel such order
–
i. In the case where, such sum was paid before such order, from the date on which
such order was made.
ii. In any other case, from the date of expiry of the period, if any, for which
maintenance has been actually paid by the husband by thewoman;
c. The woman has obtained a divorce from her husband and that she had
voluntarily surrendered her rights to maintenance after her divorce, cancel the order
from the date thereof.
At the time of making any decree for the recovery of any maintenance or
dowry by any person, to whom a monthly allowance has been ordered to be
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paid under section 125, the Civil Court shall take into account the sum that
has been paid to, or recovered by, such person as monthly allowance in
pursuance of the said order.
CRUELTY TO SECOND WIFE

A. Subash Babu v. State of A.P., (2011)
Issues raised :
1. Whether the Second wife is entitled to legal remedy under Sec.494 and Sec.495
of the Indian Penal Code ?
2. Whether , in case of a special amendment to the Criminal Procedure Code, allow
the Magistrate to take cognizance of the same?
FACTS
Petitioner - Sub-Inspector of Police, cheated R and her parents by stating that his first
wife had died after delivering two children who are studying and staying in a hostel, even
though his first wife by name Sharda is very much alive and living with him.
• He had collected total amount of Rs.28,000/- from her father towards hand loan
on the false plea that he was constructing his own house at
Borabanda
• further demanded a sum of Rs.20,000/- from her father and when her father
expressed inability to pay the amount, the appellant threatened
the complainant and her father with dire consequences by showing his licensed
revolver.
The case development
• Feeling aggrieved by the acts of the appellant in cheating her,

committing bigamy and meting out cruelty to her for dowry, etc.,
• lodged FIR to take appropriate action against the appellant for alleged
commission of offences
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• The Investigating Oﬃcer, investigated the FIR lodged by the respondent

no. 2 and submitted charge sheet in the Court of JMFC
• On receipt of the charge sheet the learned Magistrate took cognizance of the
offences and summoned the appellant.
• the appellant filed Criminal Petition in the High Court for quashing the
proceedings in the Criminal Case pending before the learned
Magistrate.
Ground of criminal petition
• On the ground that the proceedings against the appellant were registered for
commission of above mentioned offences on the basis of
charge sheet submitted by the Sub-Inspector of Police, Women Police Station,
Amberpet, R.R. District and not on the basis of complaint made by the
aggrieved person within the meaning of Section 198 of the Code.
• under Sections 494 and 495 - It is his wife and cognizance of those offences
could have been taken only on the basis of the complaint filed
by his wife in the Court or by someone on her behalf as contemplated by Section
198A (1)(c) of the Code, and therefore, the learned Magistrate could not have
taken cognizance of those offences on the basis of submission of charge sheet
by Sub-Inspector of Police on thebasis of the investigation into the FIR
Section 198(1)(c) in The Code Of Criminal Procedure, 1973
(c) where the person aggrieved by an offence punishable under section 494 or section
495] of the Indian Penal Code (45 of 1860 ) is the 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].
A. Subash Babu v. State of AP (2011)
Issues raised:
1. Whether the Second wife is entitled to legal remedy under Sec.494 and Sec.495
of the Indian Penal Code?
2. Whether, in case of a special amendment to the Criminal Procedure Code, allows the
Magistrate to take cognizance of the same?
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Section 494 and 495 of IPC – Cognizance of

offenceFacts –
• Petitioner - Sub-Inspector of Police - cheated Respondent and her parents by stating
that his first wife had died after delivering two children who are studying and staying
in a hostel, even though his first wife by name Sharda is very much alive and living
with him.
• Feeling aggrieved by the acts of the appellant in cheating her, committing bigamy
and meting out cruelty to her for dowry, etc. - lodged FIR to take appropriate action
against the appellant for alleged commission of offences.
• On receipt of the charge sheet the learned Magistrate took cognizance of the
offences and summoned the appellant.
• The appellant filed Criminal Petition in the High Court for quashing the
proceedings in the Criminal Case pending before the learned Magistrate - On the
ground that the proceedings against the appellant were registered for commission of
above mentioned offences on the basis of charge sheet submitted by the Sub-
Inspector of Police, Women Police Station, Amberpet, R.R. District and not on the
basis of complaint made by the aggrieved person within the meaning of Section 198
of the Code.
• Under Sections 494 and 495 - It is his wife and cognizance of those offences could
have been taken only on the basis of the complaint filed by his wife in the Court or
by someone on her behalf as contemplated by Section 198A (1)(c) of the Code, and
therefore, the learned Magistrate could not have taken cognizance of those offences
on the basis of submission of charge sheet by Sub-Inspector of Police on the basis
of theinvestigation into the FIR.
Also quoted the below 2 cases – wherein the Supreme Court held that Section 498-A is
attracted even in the case of allegation of cruelty to second wife. With respect to the
Magistrate taking cognizance of the crimes, the apex Court, went into the details of
conflict of laws between the State and the Centre, where the current amendment to the
Code was wrongly interpreted by the High Court, and thus providing an injustice to the
respondent.
The High Court further concluded that taking cognizance of the offences punishable under
Sections 417, 420, 494 and 495 IPC was in accordance with law, but the victim i.e. the
respondent no. 2 in the present case was second wife and therefore prima facie marriage
between appellant and the second respondent was void and therefore, offence under
Section 498A IPC was notmade out against the appellant.
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Held –
A bare reading of the complaint together with statutory provisions makes it abundantly
clear that the appellant having a wife living, married with the respondent no. 2 herein by
concealing from her the fact of former marriage and therefore her complaint against the
appellant for commission of offence punishable under Section 494 and 495 IPC is,
maintainable and cannot be quashed on this ground. Reportable To hold that a woman
with whom second marriage is performed is not entitled to maintain a complaint under
Section 494 IPC though she suffers legal injuries would be height of perversity.
A married man who by passing himself off as unmarried induces an innocent woman to
become, as she thinks his wife, but in reality his mistress, commits one of the grossest
forms of frauds known to law
For all these reasons, it is held that the woman with whom second marriage is contracted
by suppressing the fact of former marriage would be entitled to maintain complaint against
her husband under Sections 494 and 495 IPC.
Mavuri Rani Veera Bhadranna Vs. State of A.P. (2007)
• Concluded that the Division Bench in Mavuri Rani Veera Bhadranna

(supra) had taken note of the fact that the offence punishable under
Section 494 IPC as amended by the State of Andhra Pradesh was made
cognizable,
• and though there was no corresponding amendment to Section 198 of the

Criminal Procedure Code, the investigating agency was entitled to
investigate, and the Magistrate was not precluded from taking cognizance of the
said offence on report filed by the police
• Woman — Second wife
• A Two-Judge Bench of the Supreme Court has held that even a second wife can
file a complaint under Section 498-A. In this connection,
following words of Arijit Pasayat, J. (talking in terms of Sections 498-A and 304-B
IPC and Section 113-B Evidence Act, 1872) assumes importance:

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HELD
• “... The legislature has taken care of children born from invalid marriages.
Section 16 of the Marriage Act deals with legitimacy of children of void and
voidable marriages. Can it be said that the legislature which was conscious of
the social stigma attached to children of void and voidable marriages closed its
eyes to the plight of a woman who unknowingly or unconscious of the legal
consequences entered into the marital relationship? If such restricted meaning
is given, it would not further the legislative intent. ........................... ” (para 18,
Reema
Aggarwal v. Anupam, (2004) 3 SCC 199)
• The above said para was quoted with approval in A. Subash Babu v. State of
A.P., (2011) 7 SCC 616 wherein the Supreme Court held that
Section 498-A is attracted even in the case of allegation of cruelty tosecond wife.
CONCLUSION
• In Reema Aggarwal v. Anupam and others holding that a person who enters
into marital arrangement cannot be allowed to take shelter
behind the smoke screen of contention that since there was no valid marriage
the question of dowry does not arise.
• Thus a bare reading of the provision and the necessary complaint , leads to
the conclusion that the complaint is valid .
• With respect to the Magistrate taking cognizance of the crimes , the apex
Court, went into the details of conflict of laws between the State
and the Centre, where the current amendment to the Code was wrongly
interpreted by the High Court , and thus providing an injusticeto the respondent.
HELD,
● The High Court further concluded that taking cognizance of the offences
punishable under Sections 417, 420, 494 and 495 IPC was in accordance with law,
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but the victim i.e. the respondent no. 2 in the present case was second wife and
therefore prima facie marriage between appellant and the second respondent was void
and therefore, offence under Section 498A IPCwas not made out against the appellant.
THEREFORE,
• In view of the above mentioned conclusions, the learned Single Judge of the High
partly accepted the petition filed by the appellant under Section 482 of the Code of
Criminal Procedure by quashing the proceedings insofar as offence punishable
under Section 498A IPC isconcerned,
• whereas the prayer made by the appellant to quash the proceedings insofar as the
offences punishable under Sections 494, 495, 417 and 420 IPC, are concerned, is
rejected, giving rise to theinstant appeal.
HELD – Answers the question- how can a second wife be an aggrievedperson?
• A bare reading of the complaint together with statutory provisions makes it

abundantly clear that the appellant having a wife living,
married with the respondent no. 2 herein by concealing from her the fact of
former marriage and therefore her complaint against the appellant for
commission of offence punishable under Section 494 and 495 IPC is,
maintainable and cannot be quashed on this ground.
• Reportable To hold that a woman with whom second marriage is

performed is not entitled to maintain a complaint under Section 494 IPC
though she suffers legal injuries would be height of perversity.
Bigamy & its aggravation
Section 495 IPC provides that if a person committing the offence defined in Section 494
IPC conceals from the person with whom subsequent marriage is contracted, the fact of
the former marriage, thesaid person is liable to punished as provided therein.
The offence mentioned in Section 495 IPC is an aggravated form of bigamy provided
in Section 494 IPC. The circumstance of aggravationis the concealment of the fact of
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the former marriage to the person withwhom the second marriage is contracted.
• A married man who by passing himself off as unmarried induces an innocent woman
to become, as she thinks his wife, but in reality his mistress, commits one of the
grossest forms of frauds known to law
Therefore For all these reasons, it is held that the woman with whom second marriage is
contracted by suppressing the fact of former marriage would be entitled to maintain
complaint against her husband under Sections 494and 495 IPC.
Mavuri Rani Veera Bhadranna v. State of AP (2007)
The offence punishable under Section 494 IPC as amended by the State of Andhra
Pradesh was made cognizable, and though there was no corresponding amendment to
Section 198 of the Criminal Procedure Code, the investigating agency was entitled to
investigate, and the Magistrate was not precluded from taking cognizance of the said
offence on report filed by the police A Two-Judge Bench of the Supreme Court has held
that even a second wifecan file a complaint under Section 498-A.
Reema Aggarwal v. Anupam (2004)

A person who enters into marital arrangement cannot be allowed to take shelter behind
the smoke screen of contention that since there was no valid marriage the question of
dowry does not arise.
Enforcement of Order of Maintenance
What is the use of an order if the person against whom it is passed does conform to it?
Therefore, to avoid any injustice to the already suffering victim, the law always provides
for an enforcement mechanism. The relevant procedure for enforcement of an order is
provided under Section 125 (3) read with Sec 128 of the Code.
If any person against whom an order of maintenance is passed fails to furnish the amount
with registry of the court within the stipulated period, the claimant can make an
application before the court of Judicial Magistrate of the First Class to enforce the order
of maintenance and order the person to adhere to the previous order and make the due
payment.

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The essential ingredients under this provision are:
• The application can be made in any court of Judicial Magistrate with the certified
copy of the order of maintenance irrespective of the jurisdiction of the court
• The application must be made within 1 year of the date of default of payment
• The person who fails to make payment of maintenance must not have sufficient
reasonable grounds for doing so.
• The court, if satisfied that the non-compliance of the order was without sufficient
reason, will issue a warrant of arrest against such person.
• The defaulting person can be sent to imprisonment for 1 year or until he makes
the payment whichever is earlier.
• The defaulting cannot put any unreasonable condition for payment of such
money. For instance, if the person asks his wife to stay with him and she has
reasonable cause to deny, he cannot evade payment saying the condition was not
fulfilled.
In Ram Bilas v. Bhagwati Devi, the court laid down the rule that for recovery of one
year's maintenance, the person is sentenced to one month's imprisonment; for one month's
accrued maintenance, the imprisonment shall be of one week. The rule does not bind
other courts as it was merely an obiter but, however, the spirit was to set a fixed system
for non-payment of maintenance amount.
Section 128 acquires importance for enforcement of an order of maintenance because this
provision requires the court to provide the claimant with a certified copy of the order of
maintenance to the actual claimant or his/her guardian or any other authorized person to
whom the maintenance is payable. The copy of the order must be provided free of cost
and without any delay.
9. Maintaince of Public order & Tranqulity
Meaning of Unlawful Assembly

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According to Section 141 of the Indian Penal Code, 1860 an ‘unlawful assembly’ is a
group of five or more persons who have one common object which may include all or
any of the following:
First – To intimidate or threaten the Central Government or State Government,

Parliament or State Legislature and/or any public servant during the discharge of his
lawful duty by use of criminal force,
Second – To impede any law or legal process from being successfully executed
Third – To commit any mischief or criminal trespass or any other offences under the
Indian Penal Code, 1860,
Fourth – To illegally obtain any property from a person or prevent him from accessing
any public way, use of water or any incorporeal right that he is entitled to,
Fifth – To threaten by use of criminal force compelling a person to do what is he is

legally not bound to do or prevent from doing what he is legally bound to do.
Therefore, any group of five or more people gathered together or acting independently
but towards achieving one object which is any one or more of the five objects
aforementioned is an unlawful assembly. To constitute an unlawful assembly, it is not
necessary that the assembly was formed with the intention to accomplish said objects but
if an assembly later decides to commit an act which falls under any of the five categories,
it will be considered as ‘unlawful assembly’ under Section 141 of the IPC.
Purpose of Dispersal
The Code grants powers to its functionaries to disperse members of such unlawful
assemblies to ensure that public order and peace is maintained in the society. The
provision is considered necessary because the formation of unlawful assembly and being
a part of unlawful assembly has been made an offence under the IPC punishable
under Section 143 and if one of the members of the assembly commit any offence
towards the achievement of the common object, each member of such assembly shall be
punished for that offence. Therefore, dispersal of these assemblies come under the
prevention of crime and comes within the ambit of the scope of the Cr.P.C.
Procedure of Dispersal
The power to disperse the unlawful assembly can be exercised in three different ways
under Sections 129 to 131 of the Code of Criminal Procedure.

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A. By Use of Civil Force: Section 129 of the Code empowers the police officers and
Magistrates to command the members of an unlawful assembly or a prospective
unlawful assembly (assembly of persons likely to commit any of the act under
Section 141, IPC) to disperse and stop violating public peace. For the purpose of
dispersal of unlawful assemblies, powers are conferred primarily on any
Executive Magistrate (includes Sub-divisional magistrate and District Magistrate)
or officer in charge of a police station or any officer in his absence but not below
the rank of Sub-inspector.
Before any force can be used for the dispersal of an unlawful assembly, three
prerequisites as mentioned in Karam Singh v. Hardayal Singh should be satisfied. Firstly,
there should be an unlawful assembly with the object of committing violence or an
assembly of five or more persons likely to disturb public peace and
tranquillity. Secondly, such assembly is ordered to be dispersed immediately by the
competent authority. Thirdly, in spite of such order to disperse, such assembly does not
disperse or does not, ex facie, seem to be dispersing.
The provisions under Section 129 allow the use of only civil force, i.e. command, order
or warning and therefore, in a situation which did not justify firing, firing took place and
that too without the orders of the authority, the dependants of the victim were ordered to
be compensated by the State (State of Karnataka v. B. PadmanabhaBeliya).
B. By Use of Armed Forces: In connection to the use of armed forces of the nation
to disperse unlawful assembly, Section 130 of Cr.P.C provides that if the
Executive Magistrate believes that the unlawful assembly cannot be dispersed by
use of civil force and its dispersal is necessary for public security, such Magistrate
may cause it to be dispersed by the armed forces.
The Magistrate may use the assistance of any group of persons belonging to any of the
three armed forces (Army, Navy and Air Force) and with such officers under his
command, he may order the arrest and confinement of persons who formed the part of
such assembly. However, clause 3 provides that the armed forces and the commanding
Magistrate should use as little force as required and cause minimal possible injury to any
person or property.
C. By certain armed forces officers in the absence of competent authority: The

provisions of Section 131 is applicable only when the public security is manifestly
endangered by the presence of an unlawful assembly and when no Magistrate can
be communicated with under the given circumstances. If these two conditions are
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satisfied than any commissioned or gazetted officer of the armed forces may use
the forces under his command to disperse such unlawful assembly.
Section 132 provides protection from prosecution. No person shall be prosecuted for any
act done under Section 129,130,131 except with the sanction of central government, state
government.
NUISANCE
Meaning of Public Nuisance
An interpretation of Section 133 (1) of Cr.P.C will lead to the inference that ‘public
nuisance’ includes any or all of the following acts:
First – any unlawful obstruction in any public place or from anyway, river or channel
which is or may be lawfully used by the public,
Second – any trade or occupation, or any goods or merchandise, the conduct of which is
injurious to the health or physical comfort of the community,
Third – construction of any building or disposal of any substance which is likely to cause
fire or explosion,
Fourth – any building, tent, structure or tree that is in such a condition which is likely to
fall and cause injury to persons in the neighbourhood,
Fifth – any unfenced tank, well or any excavation which lies adjacent to anyway or public
place and
Sixth – any dangerous animal that may cause injury.
The above six acts individually constitute different circumstances of a public nuisance
but, however, the meaning of several terms remain ambiguous since the Code is silent
about them. The term “public place” in the first clause is not defined in the Code.
InRam Kishore v. State, the court held that “a place in order to be public must be open to
the public, i.e. place where the public has access by right, permission or usage”. Further,
in Vasant Manga v. Baburao Naidu, the court held that “community cannot be taken to
mean residents of a particular house. It means something much wider than that”
Purpose of Removal of Public Nuisance

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The object and purpose behind Section 133 of the code are to prevent such public
nuisance which, if the Magistrate fails to take immediate recourse to Section 133, will
cause irreparable damage to the public. To apply Section 133, the public nuisance should
be short-term and should not have existed permanently before. Therefore, in MakhanLal
v. ButaSingh[5], the court averred that ‘no action seems possible if the nuisance has been
in existence for a long period. In that case, the only remedy open to the aggrieved party is
to move the civil court.
Nature of Provisions related to Public Nuisance
Section 133 of the code provides a rough and ready procedure for removing public
nuisances and is to be used in urgent cases. The public nuisances are no doubt not as
dangerous as requiring the use of security proceeding under the Code, nor their removal
is as urgent as the dispersal of unlawful assemblies. However, the legislature considered
that even public nuisances are fraught with potential danger. Thus, require summary
action for its removal.
It is pertinent to reiterate what the Punjab and Haryana High Court observed in
BhabaKanta v. RamchandraThe court observed that the proceeding related to the
removal of public nuisances are “just to maintain peace and tranquillity and the orders
rendered under these provisions are merely temporary in nature”. Basically, when there is
a dispute with respect to a land between two parties, any illegal construction, etc. causes
hindrances to the public as well.
Thus, the orders under any sections of removal of public nuisance come to an end when
the dispute is resolved by the civil court. Hence, the orders for the removal of public
nuisance are coterminous with the judgment or decree of the civil court.
Thus, the orders under any sections of removal of public nuisance come to an end when
the dispute is resolved by the civil court. Hence, the orders for the removal of public
nuisance are coterminous with the judgment or decree of the civil court.
Procedure for Removal of Public Nuisance

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According to Section 133, upon receiving any reasonable information regarding the
commission or omission of acts that cause a public nuisance, the appropriate Executive
Magistrate can exercise his powers under Section 133.
The provision empowers the Magistrate to take evidence to support its belief that public
nuisance is being committed in some part under its jurisdiction. After receiving the
information and taking evidence, if the Magistrate is satisfied that one of the six
circumstances aforementioned under Section 133 (1) exists, he may order the appropriate
person to;
A conditional order under section 133 of Cr.P.C is mandatory and without it, no final
order can be made. The conditional order must specify the time period in which
the nuisance or obstruction is to be removed or resolved. The conditional order can be
passed to remove the obstruction or nuisance, to abstain from carrying on such trade, to
remove or regulate as ordered such goods or merchandise causing a nuisance, to remove,
repair or support such building, to confine or dispose of such dangerous animal as manner
prescribed in the order.
1. Remove such obstruction or nuisance,
2. To desist or take adequate measures to regulate the trade and occupations that are
injurious to public health and safety,
3. To restrain the construction of any establishment which is constructed illegally

and before the decree of the civil court in that regard,
4. To remove, repair or replace or otherwise fix the building or any other

construction or tree which is in a falling condition,
5. To fence such tank, well or excavation which is unfenced and hence, threat,
6. To destroy, confine or otherwise dispose of such hazardous animals who pose a

threat to the society.
KachrulalAgrawal v. the State of Maharashtra - to exercise the power of removal of

public nuisance, the following are the sine qua non:
1. The nuisance must be public and affect the members of the society as a whole and
thus, can be removed from a public place,

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2. There must be an imminent danger to property and a consequential nuisance to the

public
3. If the Magistrate does not take any action and direct the public to take recourse to
the ordinary course of law, irreparable damage should be caused and
4. Obstruction or nuisance should be an invasion on the public right and on

individual rights.
Section 134 further provides that the order passed by the Magistrate under Section
133 should be served upon the person against whom it is made by police personally and a
receipt of such service should be obtained by the officer. However, the section also
makes provision if the order cannot be served to the person personally.
Clause 2 of Section 134 mandates that such orders which cannot be served should be
notified by proclamation and published in the official gazette or any other manner
prescribed by the State Government. Also, a copy of the order must be stuck up at such
place or places to ensure that the information of the order is conveyed to such person.
A person against whom such order is passed is required to adhere to the requirements of
the order and remove the public nuisance in the time and manner stipulated in the order.
10. URGENT CASES OF NUISANCE OR APPREHENDED

DANGER- SEC. 144
Introduction
A magistrate has been vested with wide powers under Section 144 of the Code
of Criminal Procedure, 1973. It grants certain powers to a magistrate which entails
passing an order in cases of nuisance or apprehended danger in society. In order to
maintain public peace and public tranquility, preventive measures can be taken. Any
order passed by the magistrate should be in writing and consist of facts of the case.
Specific provisions regarding nuisance are mentioned in the Indian Penal Code 1860,
Civil Procedure Code 1908 and Criminal Procedure code, 1973.

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Meaning of Nuisance
Nuisance can be classified into two parts namely:
1) Public Nuisance
A public nuisance is defined under Section 268 of the Indian Penal Code, 1860. A public
nuisance can be defined as any act or omission which causes common danger, injury, or
inconvenience to the public at large. Offences against the public are done either by doing
something that annoys the whole community or by neglecting something required to be
done for common good. An act that is committed or an illegal omission should cause
injury in common.
Illustration: Poisonous gases are released from a chemical factory which is harmful to the
residents of that vicinity. Hence, will amount to a public nuisance.
2) Private Nuisance
Whereas private nuisance can be defined as an interference with the right of an individual
to enjoy his property. It is an act that affects a particular individual or a few individuals
and does not affect the public at large.
Three essential grounds that are necessary for the plaintiff to prove private nuisance:
• The plaintiff has a possessory interest in the land.
• The defendant performed an act that interfered with the plaintiff’s use and
enjoyment of his property.
• Defendant interference was substantial and unreasonable.
Illustration: X planted a tree in his house, but its roots and branches extend to the house
of Y. Hence, it amounts to a private nuisance.
Remedies of Public Nuisance
There are 2 kinds of remedies which can be provided:
1) Civil Law

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Civil remedies of public nuisance are mentioned in Section 91 of Civil Procedure Code,
1908.
It states that any wrongful act of a person is affecting the public can be stopped:
• By taking an injunction against its continuance or any other remedy as the court
deems fit according to the case.
• A suit can be filed against such an act either by the attorney in general or two or
more persons from the permission of a court.
2) Criminal Law
Under Criminal law there are three remedies given:
• Under Section 133 and 144 (Chapter X) of the CrPC
It contains a long list of sections in regard to public nuisance. But Section 133 is the most
important one; it provides conditional orders as a remedy for public nuisance. This
section empowers a District Magistrate or Sub- Divisional Magistrate or any other
Executive Magistrate to pass a conditional order, on receiving a report from a police
officer after considering the evidence.
• The prosecution will be conducted under IPC (Chapter XIV)
Any person who commits public nuisance which affects the public health, safety and
convenience will be liable under Section 290 of IPC which prescribes a fine of two
hundred rupees in cases of public nuisance.
Section 291 of IPC provides for simple imprisonment up to a term of six months or fine
or both. This article is going to focus with regard to CrPC.
Rationale behind the Applicable Situations-
The provisions dealing with Urgent Cases of Nuisance or Apprehended Danger

mentioned under Section 144 of Criminal Procedure Code is seemingly the most popular
segment of the Criminal Procedure Code. It gives powers to a magistrate to take
immediate action for prevention of any of the circumstances mentioned under Section
133 of the Criminal Procedure Code. A judge may direct any individual to abstain from
doing a certain act. A person can obtain an order with respect to a certain property in his
possession or under his management, if such Magistrate considers that such direction is
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likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person

lawfully employed, or danger to human life, health or safety, or a disturbance of the
public tranquility, or a riot, or an affray.
The prohibitory request made by a magistrate under Section 144 Criminal Procedure
Code can stay in actuality for two months, or for six months if so, coordinated by the
state government. Section 144 of Criminal Procedure Code gives powers to the Executive
Magistrates to impose prohibitory orders. This section acts as an effective tool to prevent
an outbreak of violence. There are situations under which this section is applicable:
1. Annoyance
Under Section 144 annoyance can be of two types: Physical Annoyance or a mental
annoyance. In case of physical annoyance, there should be proximity between the objects
whereas in case of mental annoyance no question of closeness arises. If there is an order
passed by the magistrate, under Section 144 dealing with nuisance, even then, it should
include injury, danger or breach of peace. Section 144 does not cover defamatory
statements or abusive articles until and unless it leads to a breach of peace or health.
Illustration: 2 policemen were obstructed in the performance of their duties and were
beaten by the people at liquor shops when they were trying to close the liquor shops on
the order of the DM (District Magistrate) so the police-imposed Section 144 in the area.
2. Injury to Human Life
Section 144 confers power on a magistrate while passing an order. He makes sure that it
should prevent the risk of injury to human life or safety. He doesn’t have any power to
make an order for the protection of property. A magistrate should satisfy that, if the act is
not prevented now than in the future it will turn out to be an offence.
Illustration: Section 144 is applied in states to ensure social distancing. If people do come
in contact with each other, it will result in the spread of coronavirus which causes danger
to human life.
3. Disturbance of Public Tranquility
The act which is prohibited under this section is the act which is likely to disturb public
tranquility. It is not enough to say that by stretching it, it would lead to a
possibility where to establish a connection of cause and effect between the public
tranquility and the act prohibited becomes necessary. The connection should have
reasonability and should not be hypothetical or distant.
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Illustration: Section 144 was applied in east Delhi after tensions arose between two
communities which resulted in riots and could have possibly disturbed the public
tranquility.
4. Order cannot be made to give advantage to one party
The section does give wide powers to the Magistrate, and imminent danger to the public
peace may justify interference with even private interests. But the section is not to be
invoked by one party to a dispute to secure a material advantage over the other.
Powers of Magistrates in Urgent Cases of Nuisance-
Section 144 envisages the powers of a magistrate in urgent cases of nuisance. These
powers provide directions in dealing with situations that cause danger to human life,
disturb public tranquility, result in riots or affray. These situations have the potential to
create unrest or danger to public peace and tranquility in any area, due to any disputes.
In the case of Radhe Das v. Jairam Mahto, there was a dispute over a property in which
Magistrates passed the order and restricted the defendant from entering the property.
Petitioners applied for the restriction of defendants. Defendants also applied for the claim
and to restrict the petitioner from entering into it. It was subsequently granted by the
Magistrate. The defendants claim that this order is violating their right over the property.
The court held that the action should be taken to prevent public peace and tranquility and
the individual rights of a person must be given away for the greater benefit.
1) The orders under Section 144 (1) can be issued by:
• District Magistrate;
• Sub-Divisional Magistrate; or
• Executive Magistrate specially empowered by the State Government.
A magistrate can start the proceedings if there is an immediate or speedy remedy is

desirable in the following situations mentioned under this clause:
• Danger to human life;
• Disturbance to public tranquility;
• Riot; or
• Affray.

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2) Ex-Parte decisions can be taken in cases of emergency under Section 144(2)
If there is an emergency or in any circumstances where notice cannot be served to that

person against whom the order has directed, be passed ex parte.
3) Orders passed by Magistrate have an expiry date under Section 144 (4)
Such orders expire within 2 months from the date the order has been made or issued.
But in the exceptional cases if the State Government considers it necessary by

notifications, it can direct that an order made by the magistrate which is to be
enforced for 2 months will continue for a period, not exceeding 6 months.
4) Alteration can be made under Section 144(5)
Any alteration can be made in the order under this section. It can be made by the
magistrate himself, or by a magistrate subordinate to him or by a predecessor in his
office. Such alteration will be made either on an application by the aggrieved person
or even the magistrate himself can do so.
Procedure under the Section-
A Procedure needs to be followed by the Magistrate, when section 144 is imposed:
Against whom the order has been passed under Section 144(7)
❖ The aggrieved person against whom the order has been passed if he approaches
the court under sub-section(5), he will be given the earliest opportunity of
hearing.
❖ On the other hand, if his application has been rejected wholly or in part either by
the State Government or by the Magistrate, the reasons are to be given the reason
in writing.
❖ Sub-section 7 provides that the proceedings should be judicial in nature and
evidence would be recorded in an open court before the alteration or a rescinding
order is passed.
Certain restrictions can be imposed by a magistrate:
• Section 144 of CrPC restricts the assembly of five or more people in a public
place with a common object. As per the code, each person of that ‘unlawful
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assembly’ will be booked under Section 143 of IPC. Unlawful Assembly is

defined under Section 141 of the Indian Penal code. An assembly of five or more
persons with a common illegal object is said to be an unlawful assembly. And if
the common object of those 5 people composing that assembly is any of the five
objects declared illegal under Section 141 of IPC:
1. To overawe Government by criminal force;
2. To resist the execution of a law or legal process;
3. To compel any person to do illegal acts;
4. To commit an offence; or
5. Forcible possession or disposition of property.
It restricts the handling of any kind of weapon in the area where Section 144 is imposed.
A magistrate can pass an order or by a public notice, declare restrictions in carrying of
arms in procession, or holding of, or taking in any mass drill or mass training with arms
in a public place. If he has a reason to believe that it is necessary for:
❖ Public safety;
❖ Preservation of public peace; or
❖ Maintenance of public order.
It prohibits carrying dangerous weapons, including lathis, sharp-edged metallic objects

which covers a knife used in a kitchen. If any person violates the and is still engaged in
the activity, then he can be detained. Whereas this section doesn’t restrict police officials
to carry guns. Police and other security personnel are the only ones who are allowed to
carry weapons in the area where Section 144 is imposed.
• As per the Section 69A of the Information Technology Act, the government has
the right to shut down the internet. Section 144 IPC gives power to a magistrate to
stop internet access in a region.
In the case of Gaurav Sureshbhai Vyas v. State of Gujarat, the petitioner had challenged
shutting down of the internet in parts of Gujarat. He argued that the government should
invoke Section 69A of the Information Technology Act that allows the government to
block certain sites for the sovereignty and integrity of India. And the internet should not
be blocked by the government as a whole in the state.

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The court held that the government had not completely blocked the internet. People had
access to it through broadband or Wi-Fi. It was held that the Section 69A of IT Act was
meant to block certain sites, but under Section 144 of CrPC, the government can issue
directions to a person responsible for extending the internet access. The court held that in
case of law-and-order situation, the government can ban internet access to bring the
situation under control.
Need for the Section-
Section 144 is implemented in a certain region in cases of nuisance or if there is a danger

that certain situation will make the situation worse or damage the property or human life.
It imposes certain restrictions on the personal liberty of the people. If there is an
apprehension of danger to human life or any disturbance to public peace and tranquility.
It restricts public gatherings to prevent protests or riots. It prevents people from meeting
at public places or from carrying dangerous weapons or restricts carrying any mass drills
or mass training with arms in public. The magistrate has certain powers to deal with the
urgent cases of nuisance and apprehended danger. Orders can be passed by the magistrate
under Section 144 of CrPC and can impose certain restrictions in cases where it is
necessary.
Such restrictions will be imposed after the assessment of the situation in the area or
region due to some conflict, which has the power to cause danger to public tranquility. To
prevent crime is the duty of administration and to safeguard the law and order in society.
Constitutional Validity of Section 144-
The provisions laid down in Section 144 are not in the excess of the limits as provided in
the Constitution of India for limiting the freedoms which are guaranteed under Article 19
(1)(a), (b), (c) and (d). The restrictions put under Section 144 are reasonable and there is
an accessibility of adequate safeguards to the individual who is affected by an order
issued under this section.
1. Madhu Limaye v. Sub-Divisional Magistrate
In this case, the Supreme Court upheld the constitutionality of Section 144 stating the
reason that it constituted a reasonable restriction in the interest of public order. The court
also said that this power should only be exercised in urgent situations. Court laid down
five points which justifies the constitutional validity of Section 144 are as follows:

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• When an ex-parte order has been passed by the magistrate, a notice should be
served to a person against whom it has been passed. Such order must be passed in
cases of extreme situations.
• Any person against whom such order is passed, he has a right to challenge that
order which shows that that there is no arbitrariness.
• The affected party can challenge the order passed by the Magistrate but it should
ensure that its action was reasonable and of a persuading nature.
• An opportunity of being heard is given to a person and also, he can show the
cause of the order. So, the principles of natural justice are in accordance with this
section.
• Section 435 read with Section 439 of this code empowers the High Court to look
into the matter and fix the liability of a magistrate as the High Court can quash the
order passed by the magistrate.
It was held that the preventive action taken by the magistrate is justified.
To know whether the restrictions which have been imposed under Section 144 of CrPC
are reasonable or not, the Supreme Court laid down the test of proportionality in case of;
2. Justice K.S. Puttaswamy v. Union of India Supreme Court laid down the
guidelines or the four-fold test to check the proportionality:
• A measure which is restricting a right should be legal;
• It should be a satisfactory means of making progress in a legitimate goal;
• There must not be any less restrictive but equally effective alternative; and
• Right holder should not get affected by the measure.
So, the orders which are passed under Section 144, should be tested on these principles
to check their legality.
Landmark Judgments
1) Ramlila Incident v. Home Secretary, Union of India

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The Supreme court had criticized the decision of the Centre for the imposition of Section
144 in Ramlila maidan against the sleeping crowd.
The Hon’ble court held that such provision which is imposed by the Centre can only be
used in grave situations, for maintaining public order.
2) Babulal v.State of Maharashtra
The Hon’ble Supreme Court held that a magistrate can exercise the power conferred upon
him where there is an apprehension of danger. But he needs to satisfy that the precautions
undertook by him were essential to protect public safety.
As per the four-fold test in section 144, it is not about likelihood or tendency. The
Magistrate should be satisfied with certain immediate measures that should be taken to
prevent the danger, and protect public safety. Powers vested upon him can not only be
exercised in the presence of danger but can also be exercised in cases where there is an
apprehension of danger.
So, preventive measures taken by a magistrate are justified.
3) ShayaraBano v Union of India
In this case, the Supreme Court held that any action of a State which is done
unreasonably or without sufficiently determining rules is arbitrary and also held that the
state can impose certain restrictions on freedom of speech and expression if it shows a
close link between public order and speech. And the liability lies on the State to discharge
the burden of proof along with evidence.
4) Romesh Thapar v State of Madras
In this case, the Hon’ble Supreme Court held that a line should be drawn between public
order and public tranquility. There are different forms of public disorders so a boundary
should be drawn between the serious and aggravated forms. Which of them are serious
should be defined and this can easily be inferred by determining which one of them is a
threat to a State.
To prevent the breach of the peace or public tranquility, a magistrate should take
preventive measures and speedy remedy should be given to maintain peace in the society.
If there is an apprehension to danger or nuisance the immediate remedy is desirable under
such circumstances. Second of all, a magistrate should consider that the directions given
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by him are effective and they prevent annoyance, injury to human life, and disturbance of
public tranquility. Section 144 turns out to be an effective tool during emergencies; it is
mainly imposed by the administration to prevent riots and violence.
11. INVESTIGATION & INFORMATION TO POLICE
Introduction
An investigation is an important segment of criminal procedure. The first step after a

crime is committed or information received by a police officer about the commission of
an offence is “investigation.” The purpose is to identify the offender and proceed him for
trial so as to serve him with punishment as per the provisions of the Code. Section 156 of
the Code of Criminal Procedure confers powers on police officers to investigate
cognizable cases. In Non-Cognizable cases, the police officer has no authority to
investigate without warrant and has to obtain a warrant under Section 155 (2) of the
Code. The term “investigation” has been defined in section 2(h) of the Code. Chapter XII
(Sections 154 to 176) of the Code deals with information to police and their powers to
investigate.
Meaning and Definition-
The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal
procedure, Investigation includes all the proceedings under this Code for the collection of
evidence conducted by a police officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf.
The investigation of an offence consists of:
1. Proceeding to the spot.
2. Ascertainment of facts and circumstances of the case.
3. Discovery and arrest of the suspect.
4. Collection of evidence which may include:
o Examination of persons concerned and reducing their statement to writing.

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o Search and seizure of places and things respectively considered necessary.
5. Formation of opinion as to whether there is a case for trial, and taking necessary
steps accordingly.
Cognizable and Non-Cognizable Offence-
The cognizable offence has been defined in Section 2(C) of the Code, wherein a Police
officer can arrest without warrant. The offence is of serious nature and is a public wrong,
where the prosecution is done at the discretion of the state. Punishment is given with
imprisonment of 3 years or more and with or without fine. Example – Dowry, Rape,
Murder, etc.
Non-Cognizable offence and case have been defined in Section 2 (l) of the Code, wherein
the police cannot arrest without warrant. The offence is less serious in nature and the
prosecution is done at the initiative of the parties. Punishment may be given not
exceeding 3 years of imprisonment. Example – Assault, Forgery, Defamation, etc.
Information to the Police Officer-
Section 154 of the code talks about when information is given as a cognizable offence.
The information must be given by the informant to the officer in charge of a police
station in writing or must be reduced into writing by the officer in charge of the police
station. The written information has to be read over to the informant and be signed by
him, which is called “First Information Report.” When the information is given by a
woman against whom any of the offences under Sections 326-A, 326-B, 354, 354-A to
354-D, 376, 376-A to 376-E or 509 IPC is alleged to have been committed or attempted,
such statement shall be recorded by a woman police officer.
After the information has been received by the police officer, he shall start his
investigation, provided he has reasons to suspect that a cognizable offence has been
committed.
Power of Police to Investigate-
Section 156 of the code empowers the officer in charge of a police station to investigate a
case in his territorial jurisdiction without the order of the Magistrate if the offence is
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cognizable in nature. The officer may also initiate an investigation on the orders of the
Magistrate empowered under Section 190.
Cases consisting of both Cognizable and Non-Cognizable Offences-
According to Section 155(4), when two or more offences are there in a case, of which at
least one is of cognizable nature, and other of non-cognizable nature, then the entire case
has to be dealt as a cognizable case, and the investigating officer will have all the powers
and authority as he has in investigating a cognizable case.
Procedure of Investigation-
Section 157 of the Code lays down the procedure of investigation to be followed by the
police, for collection of evidence. The investigation of a cognizable case begins when a
police officer in charge of a police station has reason to suspect the commission of a
cognizable offence on the basis of FIR or any other information so received. It requires
that prompt intimation of the FIR be sent to the Magistrate. The officer shall then proceed
in person to the spot for investigation of facts and circumstances, or shall depute one of
his subordinate officers for the same, and if required, measures for the discovery and
arrest of the person shall be taken.
When the information received by the police officer is not of serious nature, the officer
need not proceed in person or depute some subordinate officer to investigate on the spot.
And if no sufficient ground exists for entering on an investigation, he shall not investigate
the case. And shall state in its report for not complying with the requirements of this
section, and notify the informant that he will not investigate the case or cause it to be
investigated.
He shall then send this report to the Magistrate empowered to take cognizance of such
offence.
In Guman Singh v. State of Rajasthan, before the commencement of the investigation,

the Station House Officer and the investigating officer had received information from an
unknown person about a murder.
Thus, before commencing an investigation, it is necessary for the Magistrate to take

cognizance of the offence.

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Sending a Report to the Magistrate (Section 158)-
A report is sent to the Magistrate which is called the police report. It is sent by the
superior police officer, so as to make the Magistrate aware that a particular case is being
investigated by a police officer. The main objective of sending a report is to enable the
Magistrate to control the investigation and give directions if required under Section 159
of the Code.
The report should be sent to the Magistrate without any delay. In Swati Ram v. State of
Rajasthan, it was held that mere delay in sending the report does not throw away the
prosecution case in its entirety.
At different stages of an investigation, different reports are to be submitted by the police

to the Magistrate. These reports are:
• Section 157 of the CrPC requires the officer in charge of the police station to
submit a report to the Magistrate, called a preliminary report.
• Section 168 of the CrPC requires a subordinate officer to submit a report to the
officer in charge of the police station.
• Section 173 of the CrPC requires that a final report is to be submitted to the
Magistrate as after the investigation gets over.
Report to be sent without any delay-
The report needs to be sent to the magistrate without any delay. In Nalli v. State, the
Madras High Court had to acquit a person accused of murder on the grounds that an
“unexplained” and “inordinate” delay was there in dispatching the first information report
to the Magistrate.
The report has to be sent in a reasonable amount of time. The use of the term “forthwith”
in Section 157(1) was explained by the Hon’ble Supreme Court in Alla China Apparao v.
State of Andhra Pradesh: The expression forthwith would undoubtedly mean within a
reasonable time and without unreasonable day.
If any delay is being caused in sending the report, it should be explained properly citing
the reasons for the same

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Order of Investigation by the Magistrate-
The Magistrate, under Section 159, has been empowered, if he feels necessary, after
receiving the report to direct investigation, or to conduct himself or direct a subordinate
Magistrate to hold a preliminary inquiry. And as held by the Supreme Court, the
Magistrate has no power to stop the investigation after it has started. However, the
Magistrate has not been empowered to stop an investigation, after the commencement of
the same. In S.N. Sharma v. Bipen Kumar, it was held by the Supreme Court that the
Magistrate has no power to stop the investigation and direct magisterial inquiry.
Attendance of Witnesses-
The police officer who is pursuing the investigation is empowered to require the
attendance of the witnesses. The witnesses shall be such who are acquainted with the
facts and circumstances of the case. The powers have been conferred under Section
160 of the Code.
The provisions of Section 160 of the Code explicitly mention that no male below fifteen
years or a woman shall be called to attend at any other place than the place where she
resides.
The non-compliance of summons under Section 160 of the Code is punishable

under Section 174 of the Code.
The person who is required to appear when served summons does not do so shall be
liable to simple imprisonment up to one month or with a fine up to INR 500 or both.
The section only requires the attendance of the witnesses and furnishing of relevant
information about them. The police officer cannot insist upon the witnesses for the
production of documents before him.
The order which requires the attendance of a person needs to be in written form.
Examination of Witnesses-
The most crucial part of the investigation lies in the examination of witnesses. The
statement made by them can hold a person guilty. The police officer who is investigating
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the case has been empowered to conduct witness examination. The witnesses are bound
to answer the questions which are related to the case truly.
Section 161 lays down the procedure for the examination of witnesses by the police. The
investigating officer shall examine the persons who are acquainted with the facts of the
case. It is the duty of the investigating officer to record the statements of the eyewitnesses
without any delay. After examining the witnesses, it is required by the police officer to
write down the statement made by the witness.
There should be no delay on the part of the police officer investigating the case in
examining the witnesses. In the event of a delay of the examination of the witness, the
onus lies on the investigating officer for explaining the reasons for the delay. In a case
before the Hon’ble Supreme Court, there was an unexplained delay for ten days, and
there were some contradictions as well, the Supreme Court was of the opinion that
evidence became suspect owing to the delay.
Whereas, when the delay has been properly explained, it does not have any adverse
impact upon the probative value of a particular witness.
The police officer while examining the witnesses is not bound to reduce the statements
made into writing.
It is preferred that the statements should be written or the substance of the whole
examination should be written down at least.
The recorded statements are required to be noted down in the case diary maintained
under Section 172 of the Code.
Statements to the Police not to be Signed-
The statements made by the witnesses during examination need not be signed by him.
Neither should be used at any inquiry or trial. The statements made by the witness can be
used in the court only to contradict him, and not corroborate him. If the witness is
brought from the prosecution side, any part of his statement if proved may be used by the
accused and can be used by the prosecution only with the Court’s permission, to
contradict him. That is, statements made under Section 161 can be used to contradict him.
However, an exception to the above section is: If any statement falls within the provision
of Section 32(1) of the Indian Evidence Act, or if any statement affects the provisions of
Section 27 of the Evidence Act.
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Statements made under Section 161 can be used for contradiction-
Section 161 of the Code requires the person who is acquainted with the facts of the case
to make statements to the police.
Such statements can be used for the purpose of contradiction by the Prosecution or the
Accused. For example, if a witness in court says, “I saw Mahesh running with a knife
covered in blood from her home,” this statement can be contradicted by the statement, “I
did not see Mahesh running with a knife covered in blood from her home.”
Recording of the statement under Section 164 CrPC-
Section 164 of the Code envisages the provisions for the recording of statements in the
presence of a Magistrate. The confession has to be recorded in the course of the
investigation. No confession shall be recorded by a police officer.
Warning to the accused or the person making a confession
Before recording the confession, it has to be explained to the person making the
confession that he is not bound to make a confession. And, if he does so, it can be
used as evidence against him as well. The statement made by a person should be
recorded with his consent and voluntarily. It is a statutory obligation which is
imposed by the Code on the Magistrate to make the accused aware of his rights.
Also, a person cannot be kept in custody if before recording the statement, he

states that he does not want to do so.
Recording of the statement when the Magistrate does not have jurisdiction
The Magistrate may record a statement of the witness even if he does not have
jurisdiction in the case. The Magistrate who recorded this confession shall
forward the same to the Magistrate by whom the case is to be inquired.
The authority of recording confessions is exclusively vested with the Judicial

Magistrate under the Code.
Furthermore, the confessions which are recorded under this Section must be in the
course of an investigation.
Signature of the accused on the confession

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The confession which has been made by the accused should be duly signed by
him. If the confession has not been signed, it is not admissible in evidence. It is
absolutely mandatory to obtain the signature of the accused.
A confession under this section should be made either in the course of the
investigation or before the commencement of inquiry or trial.
What happens if the confession is made to an unauthorized person?
In Sasi v. State of Kerala, it was held by the Supreme Court that it is not necessary to
make a confession before an authorized person only. The Supreme Court had said, “Any
person to whom a confession has been made can give evidence of it in the court regarding
the confession. Also, if it is made to such a person, the court has to look after this. The
court needs to see that the person before whom such a confession is being made can be
believed or not.
Admissibility of Evidence-
The confession recorded under section 164 can be used as substantive evidence, without
being formally proved. Record of such confession is admissible as evidence. Entire
confession must be brought on record. The Court must carefully weigh it with other
evidence. The Court may reject part of it.. Where the confession was found rejected, the
convictions based on them could not be sustained.
Non-confessional statements recorded under section 164 is not substantive evidence. But
if the maker of the statement is called as a witness in the trial, his earlier statement can be
used for contradicting his testimony in the Court under section 145 and 157 of the
Evidence Act.
In Balak Ram v. The State of U.P., it was held that evidence of witness cannot be
discarded merely because their statement was recorded under section 164. Their evidence
must be approached with caution.
Search by Police Officer-
A police officer is empowered under Section 165 of the Code to search for any place
which he has reasonable grounds to believe that contains something necessary with
respect to the investigation he is authorized to make.

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The grounds for issuing a warrant for search are provided in Section 93(1) of the Code
The search is required to be noted in a diary which is prescribed for this purpose, by the
state government.
Procedure of Search-
The investigating officer would go to the locality where the offence was committed and
get two people called the ‘Panchas’. The evidence given by the Panchas is of paramount
importance. They sign a document called the Panchnama which contains the evidence
collected out of the search. It is signed by them which validates the search and the
procedure adopted during the investigation.
What does Panchnama mean?
Panchnama has not been defined anywhere in the law. However, it is a document
which holds great value in criminal cases. The Panchnama states things which
were found at a particular place and at a particular time. Not only the Criminal
Courts but also the Civil Courts use it.
After this, a memorandum of the search is prepared by the investigating officer or

the officer-in-charge. It needs to be submitted to the Magistrate.
A search of a closed place and also of a person
The police officer-in-charge or the investigating officer who has a valid warrant is
to be allowed to conduct the search of a place. Force may be used if he is not
allowed to do so. The search is not just only of the premises but also of a person.
If it is a female, a female officer shall search her with utmost decency.
The search of the closed place or of a person has to be made before two
respectable persons of the society. These respectable persons are known as the
‘Panchas’. They need to sign the document validating the search. However, the
Panchas need not necessarily be called as witnesses.
A search of a place entered by a person who is sought to be arrested
Under Section 47 of the Code, the search of a place can be conducted by the
police when they have to arrest a person. The police can break in and enter if they
are not being allowed in the place. There is also an allowance for “no-knock
break-in” to take place: this is done to take the person by surprise.
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A search memo is prepared by the officer which needs to be sent to the

Magistrate. The same memo is sent by the Magistrate to the owner of the occupier
of the place.
A subordinate officer may be appointed in the place of the officer who is unable
to conduct the search in person. The police officer needs to record his reasons for
not being able to conduct the search in writing.
Moreover, proper reasons shall be recorded for conducting the search. This means
that the police officer should be satisfied that there is a need for conducting a
search to further the investigation. The basic objective of conducting a search is to
find evidence which may help in solving the case.
The Exclusionary Rule-
The exclusionary rule of evidence states that the things which are found out of an illegal
search are not admissible in evidence. This is a principle of US jurisprudence found in the
case of Silverthrone Lumber Co. v. USA. In India, such a rule is not applicable. One
needs to show that the search was unjust in nature to find the application of this rule.
In Pooran Mal v. Dy. Of Inspections, it was however held by the court that “Any statute
can call for search and seizure to be conducted, as long as it broadly follows the
principles as laid down in the CrPC. It was also said that the findings of a search and
seizure cannot be held as inadmissible merely on the ground of the illegality of the search
and seizure. Also, the court held that if there are some materials acquired during the
search which are useless, this doesn’t mean the entire evidence is inadmissible. There is
no constitutional principles or fundamental rights interpretation which gives for the
exclusion of evidence.”
When Investigation is to be Done Outside India-
When the investigating officer or any of his superior officer has reasons to believe that
necessary evidence may be available in a place or country outside India, any criminal
court shall issue a letter of request to the authority of that country or place requesting to
examine orally the person who is supposed to be aware of the facts and circumstances of
the case and direct him to produce all the requisite documents in his possession relating to
the case being investigated and also require to forward all the documents and evidence to
the court issuing such letter. The provision is given under section 166.

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Procedure when Investigation cannot be Completed within 24 Hours-
Section 167 deals with the procedure when investigation cannot be completed within 24
hours. The purpose of this section is to ensure liberal democratic ideology. The object is
to protect the accused from atrocities of the police and to give the opportunity to the
Magistrate to decide the question of further custody, to facilitate the investigation, and no
detention without trial. For this purpose, it has been provided that the accused or arrested
person cannot be detained for more than 24 hours. Section 167 is attracted in the
following circumstances:
1. When the accused is arrested without a warrant and is detained by the police
officer in his custody.
2. More than 24 hours needed for an investigation.
3. There are grounds to believe that accusation or information against him is well-
founded.
4. The officer in charge of a police station or the investigating officer not below the
rank of sub-inspector forwards the accused for remand before the Magistrate.
The judicial Magistrate to whom the accused is so forwarded may authorize the detention
of such person in such custody for a term not exceeding 15 days. If the Magistrate does
not have the jurisdiction to try the case and considers further detention unnecessary then
the accused shall be further forwarded to the Magistrate having jurisdiction to try the
case.
The Magistrate shall authorize the detention of the accused (but not in police custody) if
he has reasons and grounds to believe the necessity of doing so. But in any situation, the
Magistrate cannot order detention for a period exceeding:
1. 90 days, when the person is accused of an offence punishable with imprisonment

for a period not less than 10 years of imprisonment for life or death.
2. 60 days, when accused of any other offence. And on the expiry of the period of 60
days or 90 days, whatever the case may be, he shall be released on bail if he is
able to furnish sureties.
This period is to be calculated from the date of detention and not from the date of arrest.

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If the Judicial Magistrate is absent, the Executive Magistrate or the Metropolitan

Magistrate on whom the powers of a Judicial Magistrate have been conferred for the time
being will act. The Executive Magistrate shall order for detention for a period not
exceeding 7 days. If further detention is to be made, the accused shall be forwarded to the
competent Magistrate.
If the order is given by any Magistrate other than the Chief Judicial Magistrate, he shall
forward a copy of his orders also stating the reasons for making so, to the Chief Judicial
Magistrate.
In a Summons Case, if the investigation is not complete within 6 months, the Magistrate
is required to order to stop the investigation unless he has reasons and grounds to believe
that further investigation is necessary for the interest of justice. If the Magistrate has
ordered to stop the investigation and an application is made to the Sessions judge against
the order, then the sessions judge is empowered under Section 167(6) to discard the order
given by the Magistrate under subsection 5, if reasonable grounds exist for doing so.
Production of Documents or other things-
Section 91 of the Code of Criminal Procedure states that whenever a Court or the officer-
in-charge of a police station feels that a document or some other thing is necessary for the
purpose of the investigation, such Court may issue summon or the officer may in writing,
order the person in whose possession the document is to be produced. The document shall
be produced at the date and time specified in the summons served to the person. This
section does not apply to a person who is accused and on trial.
The Court cannot issue a summons for the production of a document or a thing by the
accused. This is because it will become self-incrimination under Article 20(3) of the
Constitution of India.
In fact, documents which are not a part of the charge-sheet can also be received in
evidence for prosecution after the commencement of the trial. This was observed by the
Karnataka High Court in a petition filed by an accused in the case of BL Udaykumar v.
State of Karnataka.
The documents which are required to be produced under this Section shall be the ones
which form the subject matter of the criminal offence.

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In H.H. The Nizam of Hyderabad v. A.M Jacob, it was held by the Calcutta High
Court that the document which is needed to be produced must have some relation to, or
connection with, the subject-matter of the investigation or inquiry, or throw some light on
the proceedings, or supply some link in the chain of evidence.
Under section 92 of the Code, if a document or other thing or a parcel is in the custody of
a postal or telegraph authority, and the Magistrate whether Judicial or Executive, any of
the Courts wanted that that document for the purpose of investigation, such Magistrate or
the Court may order the authority to produce the document before them.
Procedure to be followed on completion of Investigation (s.169-s.173)
On completion of the investigation, the following procedure is to be followed:
# Release of accused when evidence is deficient
When there is not sufficient evidence and reasonable grounds to justify the forwarding of
the accused to the Magistrate, the police officer shall release him on him executing a
bond, with or without sureties, and may direct him to appear before the magistrate when
required.
# Cases to be sent to Magistrate when evidence sufficient
When the police officer has sufficient evidence and reasonable grounds, he shall forward
the accused to the Magistrate, so that the Magistrate can take cognizance of the offence
and try the accused or commit him for trial. If the offence is bailable, the accused shall be
given security and be released on bail, only to appear before the Magistrate when
required, and for his day to day attendance before the Magistrate.
# Diary of proceedings in an investigation (section 172)
This section relates to the contents of a case diary, which every police officer making an
investigation has to maintain. The object of this section is to enable the Magistrate to
know what was the day to day information by a police officer who was investigating the
case. Oral statements of witnesses should not be recorded in this case diary. This diary
may be used at trial or inquiry, not as evidence, but to assist the court in proceeding with
the case.
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Report of police on completion of the investigation (Section 173)-
Section 173 of the Code requires the investigating officer to file a report before the
Magistrate after the collection of evidence and examination of witnesses are done with.
This section requires that each and every investigation shall be completed without any
unnecessary delay.
Section 173(2) requires the
(i) the names of the parties;

(ii) the nature of the information;
(iii) the names of the persons who appear to be
acquainted with the circumstances of the
case;
(iv) whether any offence appears to have been
committed and, if so, by whom;
(v) whether the accused has been arrested;
(vi) whether he has been released on his bond,
and if so, whether with or without sureties;
(vii) whether he has been forwarded in custody
under section 170 to be submitted in the
closure report before the Magistrate.
The report under section 173 is called as the “Completion Report”. Also known as the
“charge sheet”. Sending such a report is extremely necessary and mandatory.
In the report, the officer also needs to communicate the action which shall be taken by
him. The final report will be of two kinds:
(1) Closure Report
(2) Charge Sheet/Final Report
Closure Report
Closure report is the one in which it is stated that there is not enough evidence to
prove that the offence has been committed by the accused. Once the closure report
is filed before the Magistrate, he may accept and the report the case as closed,
direct a further investigation into the case, issue a notice to the first informant as

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he is the only person who can challenge the report or he may directly reject the
closure and take cognizance of the case.
The report under Section 169 of the Code can be referred to as the Closure
Report.
Charge Sheet
A charge sheet is a final report prepared by the investigating officer in furtherance

of proving the accusation of the crime committed. It enumerates upon the
elements of the offence and also the details of the complete investigation of the
Police authorities and the charges against the accused. It envisages the facts in
brief, a copy of the First Information Report, all the statements recorded
under section 161 and section 164, list of the witnesses, list of seizure and other
pieces of evidence collected by the investigating agency during the investigation.
• It is on the basis of the charge sheet that the Magistrate frames the charges
against the accused.
• A charge sheet is different from the First Information Report (FIR). A
charge sheet describes how a crime has been committed.
Inquest Report
An inquest report is prepared to determine the cause of death in cases of suicides,

unnatural death, and deaths caused in the commission of an offence. An inquest
by the police falls under section 174 of the CrPC. It is a document which is of
paramount importance because it is handed over to the doctor along with the dead
body of the victim when it is being sent for the post-mortem examination. An
inquest report does not give substantive evidence. However, it provides
corroborative evidence given by the officer who makes the report.
• When the charge sheet is sent to the Magistrate, the preliminary stage of
investigation and preparation is over. Upon the receipt of the charge sheet, the
Magistrate can take cognizance of the offence.
• Further investigation can be ordered by the Magistrate even after the charge sheet
has been filed.
• The police officer may also at his convenience forward true copies of the
documents to the accused.
• After the charge sheet is filed, the course of investigation ends and the Trial of the
case starts.
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Power to Summon Persons-
This section empowers the police to summon witnesses at the inquest to testify the
injuries which the investigating officer has found on the body of the deceased person. But
it is not at all necessary for him to record the statements of the witnesses or get the
inquest report signed by them. The person examined at an inquest is bound to answer
truly all the questions except those which would be incriminating him. Refusal to answer
questions is punishable under Section 179 IPC and deliberately giving a false answer is
punishable under Section 193 of IPC. The inquest report is not substantive evidence but
may be used for corroborating the evidence given by the police officer making the
inquest report.
12.COMPLAINTS TO MAGISTRATES
Introduction
This article deals with the circumstances under which a Magistrate can take an account of
the offence done. The action taken by the Magistrate in the offence implies that the
Magistrate shall have put a thought to the offence mentioned in the police report with the
view kept in mind regarding the further proceedings which are necessary for the trial of
the person accused of that offence. This article also talks about the procedure of action
taken by the magistrate and which are Preparatory to the trial of the case. Section
200 to Section 203 the Criminal Procedure Code (1973) are important to eliminate or
avoid the false, inappropriate and without due cause filed complaints aimed at harassing
the accused person.

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Importance of Complaint Proceedings under Judicial Magistrate-
Everyday court experiences suggest that many of the complaints are ill-founded and it is
essential that these complaints should from the very beginning be circumspectly looked
after. Moreover, the complaints which do not have a piece of proper evidence to make it
consider worthy should be subjected to further examination so that only in actual cases
court should summon the accused person.
It is important not to forget that an order summoning a person to appear in a court of law
for the criminal charge implies serious consequences and has the scope to make an
accused person deprive of his or her liberty which is considered to be so precious and
sacred in our Republic. Such an order should not be passed without the sanction by law.
With this end in view Section 200 to 203 have been enacted and their main scope is to be
able to distinguish genuine cases from the false ones so as to root them out in the
beginning without calling upon the party against whom the complaint is made.
The Weeding-out operation practiced by the Magistrate under Sections 200 to 203 is
solely and exclusively applicable to the cases where the cognizance is taken on a
complaint. For apparent reasons, such a special method or practice is not needed in cases
where the cognizance has been taken on a police report.
Complaint Proceedings under Judicial Magistrate-
Examination of the Complainant
Section 200 of CrPC says that a Magistrate, who is authorized to take account of the
offence took place on a complaint, shall consider upon the oath presented by both
complainant and witnesses if there is any and later the material obtained from this
examination shall be reduced to writing along with the sign of the complainant and the
witnesses and also of the Magistrate. According to the definition provided in Section
2(d) of CrPC, a complaint can be in any of the forms both oral or written. Nor does
Section 200 or any other section require the complainant to present a written complaint to
the Magistrate personally. Therefore, the complaints sent to the Magistrate through posts
are valid and he can take action on such complaints also.
Whether the complaint is in the form of writing or oral, Section 200 of Crpc makes it
legally mandatory to be examined by the Magistrate on oath. The mere objective of such
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an examination of the complaint presented to the Magistrate is to establish whether there

is any direct or actual case against the person who is being accused of the offence in the
following complaint. Further, it aims to restrict the issue of process on a complaint which
is either false or inappropriate or may be intended only to harass a person by accusing
him of an offence.
The provisions provided under Section 200 are not a mere formality but instead made by
the legislature to protect and guard the accused person against the unwarranted
complaints. These provisions are not discretionary but mandatory to be performed by the
Magistrate. In some cases, the non-examination or improper examination of the
complaint by the Magistrate has been considered merely non-uniform and not
“ineffective of the proceedings” in the absence of failure of justice towards the accused. It
is also considered that the non-examination of the complaint by the Magistrate may cause
harm to the complainant, not the person who has been accused by him. There is no need
for re-examination regarding the case ‘complaint by a public servant or court’ and
‘Magistrate forwards the case to a different Magistrate under Section 192’.
The procedure by Magistrate not Competent to take Cognizance of the Case-
According to Section 201 of CrPC, ‘‘If a complaint is made before a Magistrate who is
not competent to take cognizance of the case, then Magistrate will do either of the two
things as follows-
1. If a Complaint is made in writing, then the Magistrate needs to refer the following
case to the proper court for the presentation with the support for that effect.
2. If the Complaint is not in writing, then the Magistrate shall direct the complainant
to the proper Court.
Postponement of Issue of Process
According to Section 202, the order of investigation is called “Post Cognizance

Investigation” which is not the investigation done under Chapter 12 of CrPC (Section
156(3)). Therefore, any report submitted under this order shall be done as per Section 202
CrPC and not as that of Section 173(2) of CrPC. This investigation under Section 202
CrPC is for the limited purpose as asked for by the Judicial Magistrate. However, the
Judicial Magistrate will not order investigation under Section 202 if:
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• The matter is exclusively triable by the Court of Session.
• When the complaint has been made by the public servant and the matter is not
exclusively triable by the Court of Session.
According to this section, the collection of evidence can be done by the police officer or
by any such person who is considered to be fit and is authorised by the Judicial
Magistrate on that behalf.
The main objective of the investigation directed under this section is to aid the Magistrate
in making up a decision to move towards the issue of process and this process should not
be thorough and exhaustive in nature. There need not be any investigation to be directed
if the offence is specially carried out for trial by the Court of Session which is ultimately
going to indirectly help in achieving an inquiry made by the Magistrate himself.
Moreover, in the case where the complaint has not been made by the court then there
need not be any investigation directed unless the complainant and the witnesses have
been examined on the basis of an oath. Section 465 of CrPC will not be able to cure the
proceeding in the case of directing an investigation before such examination but will spoil
the proceeding instead. The magistrate has the discretion to take or not to take any
account of the witness on the oath if the Magistrate wants to decide the case himself.
Section 202(2) of CrPC talks about the idea that in cases of offences which are entirely
triable by the Court of Session the inquiry should be Broad-based in nature whereas
unlike in the cases left on the discretionary action of the Magistrate. This broad-based
inquiry is led by the Magistrate only in the situation where he is unable to make his mind
whether to dismiss the complaint or proceed further to issue a process upon the
complaint. In the case of trial by the Court of Session, it is explicitly required by the
Magistrate to call upon the complainant along with all his witnesses and examine them on
oath and here the word ‘All’ means all of them not ‘some’. This provision helps the
accused person to prepare him for defence with respect to the accusations put on him by
the complainant and examination of all the witnesses is not a mere formality. Under
Section 202 there is no provision provided to compel the complainant to be present in the
court during the Examination of the witnesses on oath and especially when the
complainant has been already examined on oath. Dismissal of the complaint by the
Magistrate in such a situation will be considered illegal.

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Issue of Process-
As per Section 204 CrPC, if the Judicial Magistrate taking Cognizance of an offence
considers that there is sufficient ground to proceed in the matter, he shall issue process
against the accused person in the following manner:
• If it’s a summons case, he shall issue a summons for the attendance of the accused
• If it’s a warrant case, he may issue a warrant or if he thinks fit, may issue a
summon for causing the accused to appear at a certain date and time.
This whole procedure of issuing summons or warrants under Section 204 CrPC is to
make the accused person aware of the prosecution witnesses and to prepare his defence.
Once the Judicial Magistrate has issued summons or warrants in a case, he cannot recall
his order of issue process. Therefore, the only recourse available to the aggrieved person
to challenge the issuance of process under Section 204 CrPC is by invoking Section 482
CrPC.
Dismissal of Complaint-
According to Section 203 of CrPC, “The Magistrate can also dismiss the complaint if
inquiry or investigation under Section 202 result no ground for proceedings”, i.e, after
considering the statements of the complainant and its witnesses under Section 200 and the
result of investigation under Section 202, the Judicial Magistrate is of the opinion that
there is no sufficient ground to proceed in the matter, he shall dismiss the complaint with
brief recorded reasons. A second complaint on the same facts could be entertained only in
exceptional cases.
Section 203 of CrPC authorises a Magistrate to take cognizance on a complaint by the

complainant to build an opinion regarding the sufficiency of grounds to continue with the
proceeding of the case. This opinion must be based on the statements made by the
complainant and his witnesses and further depends on the result of the investigation or of
an inquiry as per Section 202. The Magistrate is required to apply his mind on the
material facts available regarding the case and then form an opinion whether those
grounds are sufficient or not to continue further with the proceeding of the case.
The case is entirely triable by the Court of Session at the stage of Section 203 and Section
204 of CrPC. All that the Magistrate is required to do is to study or examine the
complaint properly and to check that the evidence recorded during the introductory
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inquiry under the Section 200 and Section 202 are direct evidence in support of the
charges put on the accused person. At the later stage that is as per Section 203, the
Magistrate is not required to measure the available evidence precisely and leave it for the
trial court to perform. The quality to be maintained in examining the evidence should not
be the same as maintained during the stage of framing charges. The standards of proof
and opinion should not be applied exactly during the stage of framing charges like
applied finally before establishing the accused person guilty of the offence. So if, the
stage of Section 202 or 204 provides with the direct evidence to support the allegation put
on the accused in the complaint related to the case exclusively triable by the Court of
Session, that will be sufficient ground for issuing the process to the accused and further
committing him for the trial to the Court of Session.
As per the Section 203, the magistrate in exercising his discretion should not
allow himself to get manipulated by consideration of the motive by which the
complainant may have acted in the matter and not by any other consideration outside the
facts which are presented by the complainant in support of his complaint against the
accused. Mere lapse of time between the attempt of offence and date of the complaint
made by the complainant is no ground for throwing out the complaint, though that may
be relevant considering at the trial for evaluating evidence when presented.
The order of dismissal of the complaint by the Magistrate is subject to the

examination by higher courts and can be reviewed later. Therefore, the recording of the
reasons behind the dismissal of the complaint would be useful for such an examination of
the complaint. At this stage, it should be possible for the accused to satisfy the Magistrate
that there was no case existing at all against him and that he can recall the order issuing
process as per the Section 204 and further dismiss the complaint under Section 203. In
the Chiman Lal v Datar Singh and Ors. (1997) case, it was held that the dismissal of a
complaint is inappropriate where the Magistrate is unable to examine the material facts
and witnesses as stated under 202 of CrPC.
Power of Magistrate to dismiss the Private Complaint which reveals no Offence-
According to the provisions of clause (a) mentioned under Section 190(1) of the CrPC,
the magistrate has the power to take account of a private complaint. It is mandatory that
the complaint filed by the complainant should contain the facts which establish offence
and if these facts mentioned in the complaint turns out to be false in respect to the

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offence, then Magistrate is not required to take an account of such complaint. He has the
discretion to dismiss such complaints without making any further inquiries.
In Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) case, Supreme court held
that: According to Section 190(1)(b) of CrPC, the Magistrate has the advantage over the
police report which mentions the relevant facts related to the complaints and further,
the Section 190(1)(c) of CrPC. provides that the Magistrate has the power to take account
of the information or knowledge of the commission of offence received through any other
person than the police report. But under Section 190(1)(a) Magistrate has a complaint as
the only option. Therefore, the Magistrate is not required to take cognizance of the
complaint directly and does not reveal the commission of any offence mentioned in the
complaint by the complainant as per the Section 190(1)(a) and complaint is simply to be
dismissed by the Magistrate. The steps taken by the Magistrate followed by Section
204 should make it visible that he has put in his mind the facts and statements and there is
a valid ground for legal proceeding against such offence further by interrogating the
accused person on whom the accusations are made in respect to the offence committed to
appear before the court. Only on satisfaction on the ground for proceeding would mean
that the facts mentioned in the complaint would comprise an offence and when examined
along with the recorded statements would directly make the accused person answerable
before the court. There needs to be a speaking order passed as per Section 203 of CrPC
when the complaint is dismissed by the Magistrate and reasons needed to be stated briefly
regarding the same. Thus, the above-mentioned judgement by the Supreme Court settles
the issue by holding that the Magistrate may dismiss a private complaint when there are
facts mentioned in such complaint does not reveal any offence directly without making
any further legal inquiry in such case.
Powers of Magistrate-
• Section 200 demands the Magistrate to examine both the Complainant and the
Witnesses present. This obligation being essential, the Magistrate needs to ask the
complaint if any witness is there or not. In the situation of absentee of the witness,
the Magistrate should record the following fact in the order sheet.
• Inquiry or Investigation for Further Examination of the complaint by the

Magistrate-
Any Magistrate receiving a complaint of an offence which he is authorised to take action

on or which had been directed to him under Section 192 of CrPC, If a Magistrate thinks it
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fit to postpone the issue of proceedings against the accused person and either can inquire
into the case himself or direct an investigation to be made by a police officer or by any
other person which he thinks is fit for the purpose of deciding whether or not there is
sufficient evidence for the proceeding.
• Section 203 gives the power to dismiss the complaint under this section in every
case and for which he shall briefly record his reasons for the same because it will
help in determining whether the Magistrate while dismissing the complaint made
by the complainant applied his mind to the facts available or whether exercised
his discretion properly or not.
The Objective behind the Section-
• The Examination of the Complaint on oath is not a mere formality that needs to be
performed by the Magistrate and discharge of a complaint with such an
examination is illegal and against the provisions of CrPC.
• A statement of oath lies in a different category that means it cannot be set equal
with the statement which may be made without taking any oath. According to the
Legislative order or means in requiring the statement on oath cannot be allowed to
take place by the Provisions provided under Section 465. However, it is not
required by the Magistrate taking action on the complaint to constantly examine
the witnesses mentioned in the petition of the complaint. So after examining the
complainant on the basis of an oath which results in finding a direct case against
the accused then the proceeding will follow and if the witnesses, in this case, were
not examined by the Magistrate, the proceedings would not be ineffective under
Section 200.
• Section 203 gives the power to dismiss the complaint under this section in every
case and for which he shall briefly record his reasons for the same because it will
help in determining whether the Magistrate while dismissing the complaint made
by the complainant applied his mind to the facts available or whether exercised
his discretion properly or not.
• The crucial duty of considering the relevant evidence materials and requirement
of the recording of the reasons is an important protection against random
dismissal of a complaint.

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• Where a complaint has been charged on the accused persons regarding

commission of several offences and the magistrate finds sufficient evidence for
issuing of the proceeding against all of them or some of them in respect of the
offences committed, his order will lead to the dismissal of the complaint against
such persons in respect of other offences. Here also the provisions stated under
Section 203 will come into play and the magistrate needs to provide the reasons
behind why he considers that there are no adequate grounds to continue with the
proceeding against the accused persons for which no action is commenced against
them.
Landmark Judgments
ManharibhaiMuljibhaiKakadia&Anr. Vs. ShaileshbhaiMohanbhai Patel &Ors.
In the case ManharibhaiMuljibhaiKakadia&Anr Vs. ShaileshbhaiMohanbhai Patel

&Ors. (2012), ShaileshbhaiMohanbhai Patel, filed a criminal complaint in the Court of
Chief Judicial Magistrate, Surat against ManharibhaiMuljibhaiKakadia and Paresh
Lavjibhai Patel. Appellants put charges against them that they had pre-planned a
conspiracy by creating forged documents and achieved signatures of the complainant, his
father and uncle, two sons of his uncle, and his elder brother. Further, used the said
documents as authentic and original by producing the same before the District Registrar,
and obtained the registration of Indoregency Cooperative Housing Society Limited by
making a false representation. By doing so the accused (appellants) have caused financial
loss and physical and mental distress to the complainant and his family members. He also
has deceived the complainant and his family members by obtaining huge financial
advantage by taking possession of the complainant’s property. Thus, it was considered
that the appellants have committed offences punishable under
Sections 420, 467, 468, 471 and 120-B under Indian Penal Code (1860).
Decision: Supreme Court held that in a revision petition preferred by the complainant
before the High Court or the Sessions Judge challenging an order of the Magistrate
dismissing the complaint under Section 203 of the Code at the stage under Section 200 or
after following the process examined under Section 202 of the CrPC, the accused or a
person who is suspected to have committed an offence is legally entitled to be heard by
the revisional court.

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In other words, where a complaint has been dismissed by the Magistrate under Section
203, made by the complainant can be challenged in a revision petition before the High
Court or the Sessions Judge, the persons who are accused in the complaint have a right to
be heard in such a revision petition. If the revisional court overrules the order of the
Magistrate dismissing the complaint and then the complaint is restored to the file of the
Magistrate and it is sent back for fresh consideration of the grounds. The persons who are
mentioned in the complaint who have committed the offence have no right to participate
in the proceedings nor are they entitled to any hearing of any sort whatsoever by the
Magistrate until the consideration in respect of matter by the Magistrate for issuing of
process. The judgments of the High Courts to the contrary are overruled.
The order passed under Section 203 could be called out in revision. The question whether
a suspect is entitled to hearing by the revisional court in a revision preferred by the
complainant challenging an order of the Magistrate dismissing the complaint under
Section 203 has been answered in the confirmation by the Supreme Court.
Chandra Deo Singh Vs. Prokash Chandra Bose and anr.
In the case of Chandra Deo Singh Vs Prokash Chandra Bose and Anr. (1963), the
honourable judge believed that since there is only one offence, i.e., the murder of
Nageswar Singh, there can be only one trial and no further enquiry can be made in
respect to the other persons who are being tried for that offence. As there was no
availability of material facts on record by which the court could tell what happened to the
enquiry against Asim Mondal and Arun Mondal after the dismissal of their application
for revision by the High Court. That report had been received which shows the High
Court directed that the commitment proceedings against these two persons have stayed
pending which led to the disposal of the present appeal by this court. The Court said that
it cannot appreciate the argument that an enquiry against a different person with reference
to the same offence cannot be undertaken.
In view of what we have stated above, it is not necessary to say very much about the last
ground. Section 203 of the Code of Criminal Procedure provides that where the
Magistrate dismisses a complaint because according to his judgment there is no sufficient
ground for proceeding with the trial, and he should record his reasons for doing so. Here,
as already stated the Magistrate pursued the report of the enquiring Magistrate and then
proceeded to dismiss the complaint. In support of this view, the dependency is placed
upon the decision of the court.
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Here, in this case, dismissal of a complaint by the Magistrate at the stage of inquiry under
Section 203 was set aside by the Supreme Court by laying down that test was whether
there was sufficient ground for the proceeding and not whether there was sufficient
ground for conviction. The Court further noticed that where there is direct evidence, even
though the accused may have a safeguard that the offence is committed by some other
persons, then the matter has to be left to be decided by the appropriate forum at the
appropriate stage and the issue of the process cannot be refused. Unless the Magistrate
finds that the evidence presented before him is self-contradictory or essentially
untrustworthy then the process cannot be refused if that evidence makes out a direct
cause.
Summary-
When the complaint is filed in writing before the Court, the magistrate after studying the
complaint registers it. After registering it, the statement of the complainant under Section
200 Criminal Procedure Code (1973) is recorded on the same day and the case is fixed
for recording evidence of the witnesses under Section 202 of the Code of Criminal
Procedure for any other day. After recording evidence under Section 202 CrPC of the
witness or witnesses and the case is fixed for arguments on summoning. Having heard the
arguments on hearing, the case is fixed for next summoning. If the Magistrate finds or
satisfies that evidence related to the offence are available in the complaint as per evidence
under Section 200 and 202 of the Code of Criminal Procedure. The Magistrate issues the
process under Section 204 of the CrPC. against the accused. On the other hand, if the
Magistrate is satisfied after studying evidence under Section 200 and 202 CrPC. that no
prima facie offence is made out and there is no sufficient ground for proceeding then he
dismisses the complaint under Section 203 CrPC.
13. Commencement of Proceedings before Magistrate:
Chapter XVI of The Code of Criminal Procedure deals with the commencement of
proceedings before Magistrate. The Magistrate has to follow all the provisions provided
in the chapter so that it will not be difficult during the proceedings. The process is:

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1. Scrutiny of complaint before process:
The examination of the complainant is an initial process that strengthens the entire
proceedings. It is necessary to scrutinize the complaint before issuing the process. The
locus standi of the complainant is verified using this examination. The Magistrate will
also verify whether the complainant would come under the exceptions provided
in Section 195 to Section 199. This process of scrutinizing the complainant has to be
done by the Magistrate himself and not by the advocate, however, the concerned advocate
can help in the process. Section 190 of the Code of Criminal Procedure provides the
condition to take cognizance of offences by magistrates. According to this section, the
Magistrate can take cognizance when:
a. After receiving a police complaint;

b. After receiving complaints of facts which constitutes any offence;
c. After receiving information from any person other than a police officer, or
upon his own knowledge, that such offence has been committed;
d. The Chief Judicial Magistrate can empower any Magistrate of the second class
to take cognizance of offences which are within his competence to conduct an
inquiry or a trial.
2. Examination of complaint:
Section 200 of the Code of Criminal Procedure deals with the examination of the
complainant. The magistrate after taking cognizance of an offence has to examine the
complainant and witnesses present. This examination has to be done upon oath. The
magistrate also has the duty to note down the relevant information found in such
examination. The substance of such examination should be given in writing and that has
to be signed by the complainant and the witnesses. The magistrate need not conduct this
examination when:
a. If the complaint is made by a public servant who is acting or purporting to act

in the discharge of his official duties or a Court;
b. If the Magistrate makes over the case for enquiry or trial to another Magistrate
under Section 192.
c. If the magistrate in charge has examined the case and makes over the case for
enquiry or trial to another magistrate, then the latter magistrate does not need
to examine the cases again.
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d. Investigation for further scrutiny of complaint:
Section 202 of the act provides further scrutiny of the complainant. The issuance of the
process can be postponed if the Magistrate feels there is a need for further investigation.
The Magistrate will decide whether there is a proper ground for conducting the
proceeding. The scope of enquiry under this section is restricted to the ascertainment of
truth or falsehood made out in the complaint.
5. Dismissal of complaint:
Section 203 provides power to the Magistrate to dismiss a complaint. The Magistrate can
dismiss the complaint if he is of the opinion that there are no sufficient grounds for
conducting the proceedings. The Magistrate comes to this conclusion after conducting an
appropriate inquiry or investigation under Section 202. The Magistrate can also dismiss
the complaint if the processing fee is not paid properly and this ground of dismissal is
mentioned in Section 204. In the case of Chimanlal v Datar Singh, it was said that the
dismissal of a complaint is not proper if the Magistrate has failed to examine material
witness under Section 202. The Magistrate can dismiss the complaint or can refuse the
issue of the process when:
a. The Magistrate finds out no offence has been committed after the complaint is
reduced to writing according to Section 200;
b. If the Magistrate distrusts the statements made by the complainant;
c. If the Magistrate feels that there is a need to conduct further investigation, then
he can delay the issue of process.
6. Issuing summons/warrant:
Section 204 of this act provides the Magistrate power to issue a process if it is found that
there are sufficient grounds for carrying out the proceeding. The Magistrate can issue a
summons if it’s a summons case. A warrant is issued in case of a warrant case. The
Magistrate can also issue summons to the accused in order to make him appear before the
Magistrate concerned within a certain date. No process shall be issued by the Magistrate
if there are any arrears in the payment of “process-fee” until the fee is paid within a
reasonable time. No summons or warrants can be issued against the accused until a list of
the prosecution witness has been provided. This section will not affect the provisions

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provided in Section 87 of the act. Section 87 enables the Magistrate to issue a warrant of
arrest whenever it is necessary under this section.
7. Power to dispense with the personal attendance of the accused:
Section 205 provides the Magistrate powers to dispense the personal attendance of the
accused in certain situations. The Magistrate can dispense the personal attendance of the
accused and permit him to appear by his pleader if there are proper reasons. The
Magistrate can also direct the personal attendance of the accused in any stage of the
investigation if it is necessary. The exemption from personal appearance cannot be
claimed as a right but it is completely under the discretion of the court after applying
relevant judicial principles. The Magistrate considers various factors to dispense
attendance like:
a. Social status.
b. Customs and practice.
c. The distance at which the accused resides.
d. The necessity of personal attendance with regards to the offence and the stages
of the trail.
8. Special summons in cases of petty offences:
The Magistrate can issue some special summons in cases of petty offences according
to Section 206 (2) For the purposes of this section,” petty offence” means any offence
punishable only with a fine not exceeding one thousand rupees, but does not include any
offence so punishable under the Motor Vehicles Act, 1939 or under any other law which
provides for convicting the accused person in his absence on a plea of guilty. When a
Magistrate takes cognizance of petty offences the case can be summarily dismissed
according to Section 260, but sometimes the Magistrate will send the summons for the
person to appear in person or by pleader when it is needed. The reason for such a decision
has to be recorded.
9. Supply to the accused of copies of statements and other documents:
It is essential to supply relevant documents to the accused so that they can understand the
procedure followed and the status of the case. The documents supplied might also be used
for future reference whenever necessary. The main need behind providing such
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documents is to avoid prejudice during the trial. The non-supply of materials by the
Magistrate that is provided in Section 207 can be successfully used for setting aside a
conviction.
10. Where the proceeding is instituted on a police report:
Section 207 provides that the Magistrate has to provide certain copies of documents to
the person accused when the proceedings are instituted on a police report. The documents
must be provided free of cost. The necessary documents that have to be provided are:
1. The police report;

2. The First Information Report(FIR) which is recorded under Section 154;
3. The statements which are recorded Sub-section (3) of Section 161 of all
persons whom the prosecution proposes to examine as its witnesses;
4. The confessions and statements that are recorded under Section 164 if
available;
5. Any other relevant document which is forwarded to the Magistrate with the
police report.
In the case of Viniyoga International New Delhi v. State, it was said that the accused is
entitled to get copies of statements that are recorded under Section 161 and of the
documents sought to be relied on by the prosecution. It was also said that it is mandatory
to provide copies of challan to the accused. This section does not deal with how to handle
the situation when some of the witnesses are not examined, but only provides furnishing
of statements of the persons examined.
11. Where the proceeding is in respect of an offence exclusively triable by the

Court of Session:
The court has to provide certain documents to the accused when the offence is triable
exclusively by the Court of Session according to Section 208. These documents should be
provided when the case is not instituted based on the police reports. The documents are:
1. The statements recorded under Section 200 or Section 202 after the
investigation by Magistrates;
2. Any documents that are produced before the Magistrate on which the
prosecution proposes to rely;

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3. The statements and confessions that are recorded under Section 161 or Section
164 if available.
12. The commitment of the case to Court of Session:
Section 209 deals with the commitment of the case to the Court of Session. According to
this section if a Magistrate feels that if the offence is triable exclusively by the Court of
Session after instituting a case, then,
a. The Magistrate can commit the case to the Court of Session;

b. The accused can be remanded in custody until the proceedings are subject to
the other provisions relating to bail;
c. The Magistrate can send evidence and other relevant evidence to the
concerned court to carry out the proceedings;
d. The Magistrate can also notify the Public Prosecutor of the commitment of the
case to the Court of Session.
13. Consolidation of cases:
Section 210 deals with the procedures to be followed when there is a consolidation of
cases instituted on a police report and on a complaint. The Magistrate can stay the
proceedings of any inquiry or trial and call for a report on the matter from the police
officer conducting the investigation if it is done in the same subject of inquiry. If the
police report does not relate to any accused in the 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, according to other provisions in the code. If a report is made by
the investigating police officer according to Section 173 and based on such report
cognizance of any offence is taken by the Magistrate against any person who is accused,
then the Magistrate shall inquire into or try together both the complaint case and the case
arising out of the police report as if both the cases were instituted on a police report.
14. CHARGE – SECTIONS 211 TO 224
• Section 211 & Section 212 specifies about Contents of Charge and
mentioning of particulars as to time and place of the alleged offence in the
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charge.
FORM AND CONTENTS OF A CHARGE (SECTIONS 211 TO 214):

• The charge should state the offence with which the accused is charged.
• If the offence has a specific name, the offence may be described in the charge
by that name only. Eg: extortion, murder, etc.
• The law and Section of the law under which the offence is committed shall be
mentioned.
• Charge shall be formulated in the language of the court
• Charge shall contain such particulars as to time and place of the alleged
offence, and the person against whom, or the thing in respect of which, it was
committed.
• If the previous conviction of the accused to is to be proved for affecting the
sentence, the facts, date and place of the previous conviction are to be stated.
• When the nature of the case is such that the particulars mentioned above do
not give the accused sufficient notice of the matter with which he is charged,
the charge shall also contain such particulars of the manner in which the
alleged offence is committed as will be sufficient for the purpose.
• When the charge is of a criminal breach of trust or dishonest misappropriation
of money or other movable property, it is sufficient to mention the gross sum,
or describe the movable property in respect of which such offence us
committed (without specifying dates or particulars), provided the time
between the first and last date does not exceed one year.
• The fact that the charge is made is equivalent to a statement that every legal
condition required by law to constitute the offence charged was fulfilled in the
particular case.
• In every charge, words used in describing an offence shall be deemed to have

been used in the sense attached to them respectively by the law under which
the offence is punishable.
BASIC PROCEDURE REGARDING CHARGE:

• The initial requirement of a fair trial in criminal cases is a precise statement of
the accusation.
• The code seeks to secure this requirement, first, by laying down in Sections
211 to 214 of CrPC as to what a charge should contain.

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• Next, stipulating in Section 218 of CrPC that for every distinct offence there
should be a separate charge.
• Lastly, by laying down in the same section that each charge should be tried
separately, so that what is sought to be achieved by the first two rules is not
nullified by a joinder of numerous & unconnected charges.
AMENDMENT OR ALTERATION OF CHARGE:

• According to Section 216 (1) of CrPC, any court may alter or add to any
charge at any time before judgment is pronounced. The section invests a
comprehensive power to remedy the defects in the framing or non-framing of
a charge, whether discovered at the initial stage of the trial or at any
subsequent stage prior to the judgment.
• The code gives ample power to the courts to alter or amend a charge whether
by the trial court or by the Appellate Court provided that the accused has not
to face a charge for a new offence or is not prejudiced either by keeping him
in the dark about that charge or in not giving a full opportunity of meeting it &
putting forward any defence open to him, on the charge finally preferred
against him.
• The court has a very wide power to alter the charge; however, the court is to
act judiciously and to exercise the discretion wisely. It should not alter the
charge to the prejudice of the accused person.
BASIC RULES REGARDING CHARGE AND ITS TRIAL:

• Section 218 – for every distinct offence of which any person is accused, there
shall be a separate charge, and every such charge shall be tried separately –
basic rule relating to framing a charge.
• This rule prohibits both joinder of charges and also joinder of trials.
• The object of charge is to forewarn and inform with clarity the accusations
made against him before the commencement of the trial so that he can equip
himself with his defence.
• But when a number of offences are committed by him and if he is charged
with all those offences in the charge and tried at the same trial, the accused
may be embarrassed in his defence and at the same time, in such a case the
court also might be prejudiced against the accused if he is tried in one trial
upon different charged resting on different evidence.

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WITHDRAWAL OF REMAINING CHARGES ON CONVICTION ON ONEOF

SEVERAL CHARGES:
• Section 224 of CrPC states that when a charge containing more heads than
one is framed against the same person, and when a conviction has been had on
one or more of them, the complainant, or the officer conducting the
prosecution, may, with the consent, of the Court, withdraw the remaining
charge or charges, or the Court of its own accord may stay the inquiry into, or
trial of, such charge or charges and such withdrawal shall have the effect of an
acquittal on such charge or charges,
• Unless the conviction be set aside, in which case the said Court (subject to the
order of the Court setting aside the conviction) may proceed with the inquiry
into, or trial of, the charge or charges so withdrawn.
• The section is applicable where the accused in convicted of one of several
distinct charges before the other charges are tried. It is necessary that the
several charges made must be in respect of distinct offences and the section
will not apply where the several charges are made under Sections 220(3),
220(4), or Section 221.
Chainsukhlal Punamchand Meher vs The State Of Maharashtra – conviction

without charge case
The facts of the case are that the petitioner (accused) was working as a medical officer
attached to the State Reserve Police Camp Dispensary.
He was alleged to have committed theft of certain medicines from the store-room of
the dispensary.
One set of keys was with the accused and the other with the compounder
Charge framed under Section 381 of the Indian Penal Code, convicted the accused of
that offence, but, on appeal to the Court of Session, the Sessions Judge, Dhulia,
took the view that since the medicines were in the possession of the accused himself,
he could not be convicted of the offence of theft which required that the present
accused should have removed the article in question out of the possession of some
other person without his consent.
The learned Sessions Judge, however, took the view that in view of the provisions of
Section 221 of the Code of Criminal Procedure it was open to him to convict the
accused of the offence of criminal breach of trust by a public servant, and he
accordingly changed the conviction of the accused from one under Section 381 of the
Indian Penal Code to one under Section 409 of the Indian Penal Code, though he
maintained the same sentence.
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Section 221 of the Criminal Procedure Code enacts that if an act or series of acts is of
such a nature that it is doubtful which of several offences the facts proved will
constitute, the accused may be charged with having committed all or any of such
offences, or he may be charged in the alternative with having committed some one of
those offences.
Sub- section (2) of S. 221 of the same Code is in the following terms: If, in the case
mentioned in S, the accused is charged with one offence, and it appears in evidence
that he committed a different offence for which he might have been charged under the
provisions of that section, he may be convicted of the offence which he is shown to
have committed, although he was not charged with it.
15. TRIAL BEFORE A COURT OF SESSION
1. Scope of the Chapter:

a. Court of session cannot directly take cognizance of a case to be tried if
mentioned under the first schedule - it has to be first taken cognizance of
before a competent magistrate, who has to then commit the case to trial
at a Court of Session.
b. In all other cases as well, the Magistrate may commit an offence to be
tried in a Court of Session if conditions under Sections 322 to 324
are met.
c. High Court does have the power to try any offences, but in practice,
the High Court does not actually try any cases - however, in the
condition that the results of a case may have widespread ramifications,
the HC may decide to try a case on its own accord, or at the
insistence of the Government - u/s 474, the same procedure, as
adopted in the court of session needs to be followed herein as well.
d. In the cases dealing with defamation of dignitary or a public official, the
court of session can take cognizance of such an offence of its own accord
u/s 199(a). The special procedure for these trials is mentioned u/s 137.
2. Requirements in a trial before a court of session-

a. In accordance with S 224, the trial in a court of session is to be
prosecuted by a public prosecutor. S 225- being directory in nature, it
does not matter if there is a lawyer who is privately engaged to conduct
the trial proceedings, and therefore, since the trial is to anyways be
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conducted by a public prosecutor.

b. Section 303- a person who is an accused in a trial is to be defended by a
person of his or her own choice. If the accused is represented by a
pleader, or the accused does not have enough means to engage a pleader,
S 304 requires a pleader to be engaged by the Court, at the expense of
the state, in order to provide the accused with a defence. For this the
Court is to provide enough time to select a competent lawyer, and give
the lawyer adequate time and facilities for the preparation of the
defence.
c. Sections 207 and 208- certain documents to be supplied to the accused
for the preparation of his defence - by the Magistrate. State of NCT of
Delhi v Ravi Kant Sharma - statements u/s 161 need to be separated and
sent to the accused, and need to be separated from observations and
summaries that are made during the investigation. Accused is not to be
given the observations and summaries made by the police officers, but
be given the statements themselves.
d. Before the commencement of the trial, u/s 238, Magistrate to satisfy
himself of the compliance of the requirements of the trial before
beginning of the trial proceedings against the accused.
3. Initial Steps in the Trial-
a. Opening case for the Prosecution u/s 226- accused brought to the court
for the commitment of a case u/s 209, prosecutor is to open the case,
describing the charge, and what evidence he proposes to use, as u/s
226. duty of the trial court to bring the accused, the accused cannot be
acquitted merely because it failed to bring the accused. Not necessary for
the prosecutor to give full details of the case he has set out to present.
b. Discharge u/s 227- on consideration of the record of the case and

documents submitted judge considers that there exists no sufficient
ground for prosecuting the accused, the accused is to be discharged, and
the reasons for the same is to be recorded in writing. The judge is to
ensure that there exists no sufficient ground to proceed against he
accused, and thereon dismiss the charges, by applying his judicial mind
to the issue at hand. Exercise of 7 principles while acting u/s 227 (Sajjan
Kumar v CBI)-
i. Prima facie case based on the evidence at hand.

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ii. Materials placed before the court showcase grave suspicion against
the accused, but has not been explained, the court is to proceed with
the trial.
iii. Court cannot be a mere mouthpiece or a post office of the
prosecution and must evaluate by the application of its own
judicial mind on consideration of facts and circumstances and
evidence placed before it.
iv. If on basis of the materials placed before it the court can form
an opinion that accused could have committed the offence, then
the court can frame a charge and move ahead with the trial.
v. At the time of framing of charges, probative value of evidence is
not to be evaluated, but the application of judicial mind to the
materials on record is necessary to consider discharge.
vi. u/s 227 and 228, court to evaluate whether the evidence
showcases prima facie the existence of all the ingredients to
commit a particular offence by limitedly sifting through such
evidence as is necessary, without accepting that all the evidence
put forth by the prosecution to be the absolute truth.
vii. If there are two views, one providing suspicion and the other
providing grave suspicion, judge can discharge the trial at this
case, he is not to see whether the trial will end with a conviction
or an acquittal.
c. Framing a Charge-
i. If the case is not exclusively triable by a court of Session, he can
frame a charge, and send it to trial before the CJM or a
Magistrate of the first class, by directing the accused to appear
before such court at a specific date and time for the trial to begin.
ii. If case is exclusively triable only before a court of session - frame the
charge in writing against the accused u/s 228(1).
iii. Sections 227 and 228 are complimentary to one another and are to be
read together.
iv. The test of prima facie case is to be read herein, in order to be able to
frame a rightful charge, and the standard of test, proof and
judgement is not to be applied at this stage. Very strong suspicion is
enough to frame a charge in this section.

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v. Prima facie case is said to be made when the probative value of all
the evidence on all the essential elements of the charge is
sufficient to induce the court to believe in the existence of facts in
favour of the commission of the offence.
vi. After the chargesheet has been issued, the question of dropping a
charge does not come into picture. The person either has to be
convicted or acquitted of the charge.
d. Explaining the Charge to the Accused-
e. charge shall be read out and explained to the accused and the accused
would be asked to enter a plea of guilty or not guilty. Charge is to be read
out to the accused in clear and unambiguous terms. Judge can also
interrogate the accused to find out whether the accused has understood
the charge.
f. Conviction on a plea of guilty- judge is to record the plea, and thereon

convict him in a/c with his discretion u/s 229. if there is a plea of guilty,
it is to come from the accused person themselves, and not the pleader for
the accused person - but if he person's presence in the court has been
excused, then the person may plead guilty through the pleader.
i. Plea to be in unambiguous terms, otherwise the plea to be
considered to be one of not guilty.
ii. If this is not done, the conviction can be set aside for
lack of recording it fully/fairly/adequately.
iii. If the plea of guilty is obtained, and it realised that the accused
did not get a proper explanation of charges, the plea of guilty
can be voided.
iv. If accused pleads guilty, no right of appeal u/s 375.
v. If accused is convicted based upon his plea of being guilty - unless
he proceeds u/s 360, then the judge is to hear the accused, and pass
a sentence in accordance with the law.
g. Date for prosecution evidence- if the plea is not guilty, or the accused
refuses to plead, then the judge is to set a date for the trial on the
application of the prosecution and issue summons to ask witnesses to
be present as u/s 230.
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h. Evidence for Prosecution-

i. Examination of witnesses u/s 231(1),(2) - first in chief and then in
cross, keeping in mind all the provisions laid down in the Indian
Evidence Act, 1872.
ii. Record of the Evidence S276- evidence of each witness is to be
taken down in writing as the trial proceeds either by the Judge
himself, or by his dictation in open court or by an officer appointed
by him. Evidence taken down in this regard shall be signed by the
judge and be made a part of the record.
i. Acquittal- u/s 232- evidence for the prosecution, judge is of the

opinion that the evidence against the accused is lacking, he can record
an order of acquittal and acquit the person of the offence.
j. Evidence for the Defence u/s 233- accused not acquitted u/s 232- then
the accused and his pleader are called upon to enter his defence and
adduce any evidence with regards to the same. Accused gives written
statement -to be put on the record. If the defence wants to call any
witnesses - judge to issue notice unless he is of the opinion that this is
merely for the purposes of vexation/delay.
k. Arguments u/s 234- when examination of witnesses by the defence is

complete, prosecutor to sum up his case and the accused and the pleader
are to be given the right to reply - if a point of law is raised by the
accused or his pleader, the prosecutor should have the right to respond
to the same.
L. Judgement of Acquittal/Conviction u/s 235- if convicted, pass a sentence

u/s 360.
16 & 17 TRIAL OF WARRANT CASES BY MAGISTRATES
1. Scope of the Chapter-

a. Warrant cases are those which are punishable with imprisonment exceeding
2 years, death, life imprisonment, except a case of defamation u/s 237.
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b. More serious with an elaborate trial procedure.

c. Sections 238-250 divided into 3 groups-
i. 238-243 applicable to warrant cases instituted on a police report.
ii. 244-247 warrant cases instituted otherwise than on police report
iii. 248-250 applicable to both conditions aforementioned.
d. Change in procedure between cases instituted on police report and those not,
understandably have different procedures considering that, on the condition
that the police have investigated, the court and accused would have access
to multiple documents and records which were obtained during the
investigations. Therefore in cases without a police report, there needs to be
special further help given to the accused to help them get better acquainted
to the facts of the case on which the prosecution is relying upon.
2. Cases Instituted on a Police Report

a. Initial Steps to the trial-
i. Supply copies of documents and records to the accused. As u/s 207,
Magistrate is to acquaint himself of the fact that the documents and
records, as required have been sent to the accused. (S 238). Accused
has a non statutory right to complete disclosure of all the documents
against him (police summaries and observations during investigations
notwithstanding).
ii. Discharge of the accused if the charges are baseless (S 239)- on

consideration of the police report and the documents sent to the court,
the Magistrate gives a chance to the prosecution to be heard if
necessary, the Magistrate is of the opinion that the charges are baseless,
then the charges can be dropped and the accused can be discharged.
However, on commencement of the trial, if the Magistrate wants an
acquittal, the position finally settled in Subramaniam Sethuraman v
State of Maharashtra states the recall of summons is possible before the
recording of the plea, u/s 252.
iii. Framing of the Charge- [S 240(1)]- if Magistrate is convinced that

there exists ground for presuming the commission of the offence, the
Magistrate shall frame the charges, if he thinks he can adequately
punish the offender.

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iv. Explaining the Charge to the Accused- [S 240(2)]- on framing the

charges, the same shall be read to the accused and explained to the
accused, and shall be asked to enter a plea of guilty or not guilty.
Charge is to not be merely read out but explained in detail in a manner
that the accused understands exactly the charges that are being placed
against him.
v. Conviction on a plea of guilty-(S 241)- magistrate to record the plea and

in his discretion, convict the person. However, if the facts do not
constitute the occurrence of a crime, then a plea of guilty cannot be
used to state an admission of guilt.
vi. Fixing Date for Examination of Witnesses- (S 242)- accused refuses to

plead or does not plead guilty, then the magistrate can set a date for the
trial and the prosecution to present its witnesses. The recording of
evidence cannot happen on the day the charges were framed-
rendered illegal.
b. Evidence for the Prosecution-
i. Examination of witnesses- on the date of the hearing, magistrate may

take the evidence of the prosecution, and cross-examination of
witnesses is possible, and the magistrate also has the power to defer the
cross examination of the witnesses till all prosecution witnesses have
been heard. (S 242 (3))
ii. Record of the Evidence- all warrant cases- evidence to be taken
down in writing (himself/dictation in open court/officer appointed
in this regard). Taken down in the form of a narrative usually, signed
by the Magistrate and become a part f the record. (S 275)
c. Evidence for the Defence (S 243)-

i. After prosecution case has been completed, the accused shall be called
upon to plead his case, argue and produce evidence. Examination of the
accused person u/s 313(b). He can ask the magistrate to compel the
attendance of witnesses, which the magistrate may agree to, based upon

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his discretion. Reasonable expenses incurred by the witnesses may be

asked to be deposited to the Court.
ii. Written Statement of the Accused mat also be tendered, if the
accused feels that his examination u/s 313(1)(b) might not be
enough for him to express himself completely.
iii. Evidence to be recorded in the same manner as stated above.
3. Cases Instituted Otherwise than on Police Report-
a. Initial Steps before the Trial- Section 244-

i. 244- magistrate to hear the prosecution and take all the evidence as
may be required in support of the prosecution. On the application of
prosecution, the magistrate may issue summons to witnesses as may
be required.
b. Discharge of the Accused- Section 245-

i. 245- if after considering the prosecution evidence, the Magistrate is of
the opinion that the no case has been made out, if unrebutted, would
warrant his conviction, the magistrate can discharge the accused. The
accused can also be discharged at any stage in the case if the Magistrate
is of the opinion that for his reasons recorded in writing, the charge
levelled against the accused are groundless.
c. Framing of the Charge- Section 246- if there are reasonable grounds for the
magistrate to assume that the offence has been committed in accordance with
the facts presented, the Magistrate may frame the charges as per the requisite
offence. The evidence must be of a nature that if it remains unrebutted by the
defence, the accused would be convicted of the offence.
d. Explaining the Charge to the Accused- Section 246(2)- similar to

aforementioned.
e. Conviction on a Plea of Guilty- Section 246(3)- similar to aforementioned.

f. Choice of the Accused to call witnesses- Section 246(5)- similar to
aforementioned requirements.
g. Similarly, in accordance with Section 264, the witnesses can be called upon to
chief examine and cross examine witnesses, record the evidence presented
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and compel the presence of witnesses as may be required.
h. Section 247- Examination of witnesses by the defence and the production of

witnesses.
i. Discharge of accused wherein the complainant is absent- Section 249-

i. On any day when the case is fixed for hearing and the complainant is
absent, the offence may be lawfully compounded or is not a cognizable
offence, magistrate can discharge the accused before the charge is
framed.
j. Compensation for Accusation without a Reasonable Cause- Section 250-

i. If the Magistrate on discharging or acquitting a person is of the
opinion that the charges that were levelled against the accused were
baseless then the magistrate can call upon the complainant to show
cause why he should not be paying compensation to the accused,
and if the complainant is not present, summons may be issued to the

complainant.
ii. Magistrate to record the information provided by the complainant
and in the condition that he is satisfied that the complaint was made
baselessly, order the complainant or the informant to pay
compensation to the accused.
iii. In the case wherein the complainant or the informant does not pay
compensation, the magistrate can order the complainant or the
informant to undergo 30 days simple imprisonment.
iv. Vide the payment of compensation under this section, the
complainant does not void himself of any other civil or criminal
liability he may incur for providing such wrongful/baseless
information.
v. In the condition that the fine exceeding 200 rupees was imposed by a
Magistrate of the Second class, the same can be appealed by the
complainant as if he were convicted of an offence in the court of the
Magistrate of the Second Class.
vi. Compensation, when appealable as aforementioned, need not be paid
until time for appeal has elapsed or the appeal has been decided, and in
cases wherein the compensation is not appealable a time period of
thirty days shall be allowed for the payment of the fine.
vii. This provision will apply to both summons and warrant cases.
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18. TRIAL OF SUMMONS CASES BY MAGISTRATES
1. Scope of the Chapter-

a. Case not punishable with death, life imprisonment, or a term exceeding 2
years.
b. Mainly prescribed between Sections 251 and 259.
c. Tried with much less formality than warrants cases and the manner of trial is
also less elaborate.
d. Method of preparation of records is also less elaborate.
e. Law Commission- the scheme here is to simplify the procedure for the trial
of numerous cases, which need to be decided quickly while maintaining all
the essentials of a free and fair trial.
2. Initial Steps in the Trial-

a. S 251- explain clearly the substance of the accusation to the accused. It
shall however not be necessary to frame a formal charge. The accused is
asked to plead guilty or not guilty. However, a statement of the particular
offences will be necessary.
b. S 252- conviction on a plea of guilty- to be recorded as closely in the same

terms as those used by the accused. This is because the right of appeal of the
accused in these cases is dependant on the words that are used by the accused
while pleading guilty. If there are more than one accused person, then the
pleas of all the different accused are to be recorded separately. Lastly, if the
facts that are mentioned in the "charge" are not enough to constitute an
offence, then the plea of guilty does not amount to the admission of guilt.
c. S 253- Conviction on plea of guilty in the absence of accused in petty

cases- accused desires to plead guilty without appearing before the magistrate
then the he shall transmit to the magistrate by post or by a messenger, a letter
containing his plea, and also the amount of fine specified in the summons.
Magistrate can convict in his discretion in his absence, or on his plea of guilty,
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and sentence to pay the fine specified in the summons, and money transmitted
by the accused is to be adjusted to the fine.
d. S 254- procedure when not convicted under section 252 or 253- proceed to
hear the prosecution. Give audience to the prosecution and allow the
prosecution to open its case by giving the facts and circumstances of the case.
The judge is to also hear all the evidence that the accused wishes to provide in
his defence.
i. If magistrate deems fit, issue summons to the witnesses - both
prosecution and defence.
ii. Before summoning witnesses, magistrate may require that
reasonable expenses of the witness incurred in appearing before
the court be deposited to the court.
e. S 255- Acquittal or conviction- after hearing the parties, and in the

condition that the magistrate feels that there is no commission of the offence,
the magistrate of his own motion may cause an acquittal. If the magistrate
does not proceed in terms of Section 325 or 360, the magistrate is to pass a
sentence he deems fit. He can also convict the accused u/s 252 and 255
which, from the there is proof of the accused committing, irrespective of the
nature of complaint or information that has been received.
f. S 256- non appearance or the death of the complainant- if the

complainant does not appear on any of the scheduled hearings, the court
needs to adjourn to another date. However, if the complainant has
appointed a pleader, and the attendance of the complainant is not deemed
necessary, then the Court may continue proceedings. The same set of rules
to apply when there is the death of the complainant.
g. S 257- Withdrawal of the Complaint- complainant satisfies the court that

there are sufficient reasons to withdraw the complaint, then the Magistrate
can permit the complainant to withdraw his complaint, and the accused is to
be acquitted of the charges.
h. S 258- Power to stop proceedings in certain cases- in a summons case

instituted otherwise than on complaint, the Magistrate of first class, or any
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other magistrate with the sanction of the CJM for recorded reasons, can stop
the proceedings a any time after the evidence of the principal evidence is
recorded, and pronounce a judgement of acquittal.
i. S 259- Power to convert summons cases to warrant cases- can be

converted for cases with imprisonment longer than 6 months in order
to protect the interests of justice, and the magistrate can rehear the
case in the manner prescribed under the crpc.
19. SUMMARY TRIAL
Section 260: Power to try summarily.
1. Any Chief Judicial Magistrate; any Metropolitan Magistrate or any Magistrate of

the first class specially empowered in behalf by the High Court, try in a summary
way all or any of the following offences : -
i. offences not punishable with death, imprisonment for life or imprisonment

for a term exceeding two years;
ii. theft, under section 379, section 380 or section 381 of the India Penal Code
(45 of 1860), where the value of the property stolen does no exceed two
hundred rupees;
iii. receiving or retaining stolen property, under section 411 of the Indian
Penal Code (45 of 1860), where the value of the property does not exceed
two hundred rupees;
iv. assisting in the concealment or disposal of stolen property under section

414 of the Indian Panel Code (45 of 1860), where the value of such property
does not exceed two hundred rupees;
v. offences under sections 454 and 456 of the Indian Penal Code (45 of 1860);

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vi. insult with intent to provoke a breach of the peace, under section 504, and
criminal intimidation, under section 506 of the Indian Penal Code (45 of
1860);
vii. abetment of any of the foregoing offences;
viii. an attempt to commit any of the foregoing offences, when such attempt
is an offence;
ix. any offence constituted by an act in respect of which a complaint may be made
under section 20 of the Cattle-trespass Act, 1871 (1 of 1871).
2. When, in the course of a summary trial it appears to the Magistrate that the nature
of the case is such that it is undesirable to try it summarily, the Magistrate shall
recall any witnesses who may have been examined and proceed to re-hear the
case in the manner provided by this Code.
Section 261: Summary trial by magistrate of the second class.
The High Court may confer on any Magistrate invested with the powers of a
Magistrate of the second class power to try summarily any offence which is
punishable only with fine or with imprisonment for a term not exceeding six months
with or without fine, and any abetment of or attempt to commit any such offence.
Section 262: Procedure for summary trials.
1. In trials under this Chapter, the procedure specified in this Code for the
trial of summons-ease shall be followed except as: No sentence of
imprisonment for a term exceeding three months shall be passed in the case
of any conviction under this Chapter.
Section 263: Record in summary trials
1. In every case tried summarily, the Magistrate shall enter, in such form as the
State Government may direct, the following particulars, namely : -
i. the serial number of the case;

ii. the date of the commission of the offence;
iii. the date of the report or complaint ;
iv. the name of the complainant (if any);
v. the name, parentage and residence of the accused;
vi. the offence complained of and the offence (if any) proved, and in cases
coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of
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section 260, the value of the property in respect of which the offence has
been committed;
vii. the plea of the accused and his examination (if any);
viii. the finding;
ix. the sentence or other final order the date on which proceedings
terminated.
Section 264: Judgement in cases tried summarily.
In every case tried summarily in which the accused does not plead guilty, the Magistrate
shall record the substance of the evidence and a judgment containing a brief statement of
the reasons for the finding.
Section 265: Language of record and judgement.
1. Every such record and judgment shall be written in the language of the Court.
2. The High Court may authorise any Magistrate empowered to try offences
summarily to prepare the aforesaid record or judgment or both by means of an
officer appointed in this behalf by the Chief Judicial Magistrate, and the record or
judgment so prepared shall be signed by such Magistrate.
20. JUDGEMENT
• Every judgment must be written in the language of the court.
• It shall deal with facts of the case, point to be decided, summary of the
evidence, point of law involved and then a finding whether the accused is
convicted of acquitted, of the offence charged.
• Judgment is final reasoned decision of the court as to the guilt or innocence of
the accused.
SECTION 353:
• The judgment in every trial in any criminal court of original jurisdiction shall
be pronounced in open court by the presiding officer immediately after the
termination of the trial or at some subsequent time of which notice shall be
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given to the parties or the pleaders –

a) By delivering the whole of the judgment
b) By reading out the whole of the judgment
c) By reading out the operative part of the judgment and explaining the
substance of the judgment in a language, which is understood by the
accused or his pleader.
• If accused is not in custody, he shall be brought up to hear the judgment
pronounced.
• If the accused is not in custody, he shall be required by the court to attend to
hear the judgment pronounces, except where his personal attendance during
the trial has been dispensed with and the sentence is one fine only or he is
acquitted.
• No judgment delivered by any criminal court shall be deemed to be invalid by
reason only of the absence of any party of his pleader on the day or from the
place notified for the delivery thereof, or any omission to serve, or defect in
serving on the parties or the pleaders, or any of them, notice of such place and
day.
LANGUAGE AND CONTENT OF JUDGEMENT (SECTION 354):
• Every judgment shall be written in the language of the court.
• Every judgment shall contain the point or points for determination, the
decision and the reasons for the decision.
• Every judgment shall specify the offence, if any, and the Section of IPC or any
other law under which the accused is convicted and the punishment to which
he is sentenced.
• If the judgment is an acquittal one, it shall clearly state the offence of which
the accused is acquitted and direct that he be set at liberty – however, he shall
not be so released if the acquittal is on the ground of insanity at the time of the
offence – in such a case, the judgment shall mention whether the act
constituting the offence was committed by the accused or not. Section 335
states that persons acquitted on the ground of insanity should be kept in safe
custody.

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METROPOLITAN MAGISTRATE’S JUDGMENT (SECTION 355):
• Judgment given by Metropolitan Magistrate shall be abridged in the form –
i. The serial number of the case
ii. The date of the commission of the offence
iii. The name of the complainant
iv. The name of the accused person, and his parentage and residence
v. The offence complained of or proved
vi. The plea of the accused and his examination
vii. The final order
viii. The date of such order
ix. A statement of reasons for the decision
• Judgment for summary trial must also be recorded in similar abridged manner.
POST CONVICTION ORDERS (SECTION 360):
• Different types of orders according to circumstances of the case –
1. Release on probation for good behavior –
➢ If the convicted is below 21 years and the offence is not

punishable with death or imprisonment.
➢ If the convicted person is not under 21 years and the offence is
punishable with less than 7 years imprisonment and if the
conviction is for the first time offence, he may be ordered to be
released on bail with or without sureties, for keeping peace and
good behavior.
2. Young Offenders –
➢ According to Section 6 of the Probation of Offenders Act, if

the offender is below 21 years and is to be punished with
imprisonment other than life sentence, the court shall not
punish such offender with imprisonment unless it is satisfied
that it would not be desirable to release him after admonition or
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on probation for good behavior and if the court sentences him

to imprisonment, if must record reasons.
3. Death Sentence –
➢ Even in capital offences, the policy of law is to avoid the death

penalty – but when it is awarded, it shall be done by giving
special reasons.
➢ No confirmation can be made until the appeal time is over if no
appeal is filed and if an appeal is filed until the final disposal of
the appeal. It is the duty of the High Court to make a thorough
and fresh appraisal of the entire case before confirmations is
made – Charan Singh v. State of Punjab.
4. Imprisonment –
➢ The law generally prescribes maximum punishment that can be

awarded for an offence and the court is given the power to fix
the sentence of imprisonment subject to the maximum and its
powers.
➢ Look into a variety of factors such as magnitude of offence,

motive for it, age and character of offender, the circumstances
under which the offence was committed, etc.
➢ When a person is awarded several punishments, the courts shall
state whether they run concurrently or consecutively.
COSTS AND COMPENSATION:
• The court imposing a fine independently or as a part of a sentence passed on

conviction may order the whole or any part of the fine applied –
a) In defraying expenses incurred in prosecution.
b) In payment of compensation or any loss or injury caused by the

offence to any person. – When compensation is recoverable by filing
civil suit.
c) When death of another person is caused or is abetted in paying
compensation to person entitled to recover compensation.
• The compensation is not payable before the appeal time expired or if an appeal
is filed until the disposal of the appeal (Section 357).
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COURT NOT TO ALTER JUDGMENT (SECTION 362):
• No Court, when it has signed its judgment or final order disposing of a case,
shall alter or review the same except to correct a clerical or arithmetical error.
VICITM COMPENSATION:
• Difference between Civil Law and Criminal Law –
BASIS CIVIL LAW CRIMINAL LAW

Definition Civil law deals with the Criminal law is the body
disputes between of law that deals with
individuals, crime and the legal
organizations, or punishment of criminal
between the two, in offenses.
which compensation is
awarded to the victim.
Burden of Proof Preponderance of Beyond a reasonable

evidence – The burden of doubt: Burden of proof is
proof falls on the plaintiff. always on the
One must produce state/government.
evidence
beyond the balance of
probabilities
Examples Landlord/tenant disputes, Theft, assault, robbery,

divorce trafficking in controlled
proceedings, child substances, murder, etc.
custody proceedings,
property disputes,
personal injury, etc.

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Type of punishment Civil litigation usually A guilty defendant is

involves some type of punished by
compensation for incarceration and/or fines,
injuries or damages as or in exceptional cases, the
well as disposition of death penalty. Crimes are
property and other divided into two broad
disputes. classes: Felonies and
Misdemeanors.
Case filed by: Private Party Government or State

Appeal Either parties Only defendant
• Sections 357 and 357A specifically deal with the powers of the trial to
grant compensation and costs to the victim.
• Section 357 of the Code, if a court passes any sentence that includes a
payment of fine, the court may order that the fine be used for any of the
following purposes:
➢ To defray any expenses incurred by the victim towards the prosecution
of the accused.
➢ To pay any compensation to the victim for any loss or injury caused to
the victim
➢ In case of any death caused due to the act of the offender and the
family of the victims are entitled to damages or compensation under
the Motor Vehicles Act, 1988.
➢ Compensating any bona fide purchaser of such property for the loss of
the same.
VICTIM COMPENSATION SCHEME:
• Every State Government is required to prepare a scheme with the assistance of

which a separate fund would be created by every State for the purpose of
compensating victims who have suffered loss or injury due to any offence
committed against them.
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• In 2008, significant amendments were made to the CrPC that focused on the
rights of victims in criminal trial, particularly relating to sexual offences.  
• Introduced Section 357-A which empowers the court to direct the State to pay
compensation to the victim in cases where ‘the compensation awarded under
Section 357- is not adequate for
• Such rehabilitation, or where the cases end in acquittal or discharge and the
victim has to be rehabilitated.
• Victim compensation scheme- section- 357A -
➢ Every State Government in co-ordination with the Central Government

shall prepare a scheme for providing funds for the purpose of
compensation to the victim or his dependents
➢ 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
➢ If the trial Court, at the conclusion of the trial, is satisfied, that the
compensation awarded under section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and the
victim has to be rehabilitated, it may make recommendation for
compensation.
➢ Where the offender is not traced or identified, but the victim is
identified, and where no trial takes place, the victim or his dependents
may make an application to the State or the District Legal Services
Authority for award of compensation.
➢ On the application under sub-section (4), the State or the District Legal
Services Authority shall, after due enquiry award adequate
compensation
➢ The State or the District Legal Services Authority, as the case maybe,
to alleviate the suffering of the victim, may order for immediate first-
aid facility or medical benefits to be made available free of cost
CRITICISM OF SECTION 357:
• Is triggered only upon successful conviction.
• It functions on the assumption that the accused must be identified, prosecuted

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and convicted.
• It does not accommodate cases where the person is not pronounced guilty, or
in those cases the Police files Closure Reports or Summary Reports.
THE 154TH LAW COMMISSION REPORT ON THE CODE OF CRIMINAL

PROCEDURE
• Devoted an entire chapter to “Victimology” in which the growing emphasis on

victim's rights in criminal trials was discussed extensively
• Section 358 provides for compensation to anyone who would be a victim of an
arrest that is without reason.
• The CrPC also takes into account instances where the accused may be victim
to false allegations
• The Criminal Law (Amendment) Act, 2013 - led to the creation of a dedicated
fund known as the Nirbhaya Fund.
• The central government also set up the Central Victim Compensation Fund
Scheme- In 2015 - aims at supporting and supplementing existing victim
compensation schemes notified by states and union territories and reducing the
disparity in the quantum of compensation.
21.APPEAL
NO APPEAL IN CERTAIN CASES
1. The general rule regarding appeals is that no appeal shall lie unless a specific
mention of the same is provided by law. (Section 372)
2. A victim shall have a right to appeal against any order passed, by the Court, in
which the accused is acquitted or convicted for a lesser offence or for imposing
inadequate compensation. Such an appeal shall lie to a Court in which appeal
would normally lie. This was inserted by the Amendment of 2008.
3. The Code of Criminal Procedure gives definite provisions as to when an appeal
lies. This however, is delimited by the provisions which state the circumstances in
which appeal shall not lie.
4. No appeal in petty cases

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i. Section 376 of the Code states that there shall be no appeal by a convicted
person in the following cases:
S. No. Imprisonment Fine Both or Not Passed By

Term
a.* 6 months Rs. 1000 Both HC
b. 3 months Rs. 200 Both Court of

Sessions or
Metropolitan
Magistrate
c. No imprisonment Rs. 100 N/A JMFC
d. No imprisonment Rs. 100 N/A In a summary

trial by the
CJM,
Metropolitan
Magistrate,
JMFC
specially
empowered
by the HC.
a. *Where the sentence of imprisonment is only 6 months or fine upto

Rs. 1000 or both, passed by the HC.
ii. However, appeal in the abovementioned cases may be brought if some
other punishment is combined with such sentence.
iii. Such sentence shall not be appealable merely on the ground that:
a. The person so convicted is ordered to furnish security to keep the
peace;
b. That a direction for imprisonment is included in the sentence for
default of payment.
c. That more than one sentence of fine is passed in a case, and the total
does not exceed the amount as mentioned above.

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5. No Appeal from Conviction on plea of guilty (Section 375)

i. When a person has pleaded guilty and is convicted on such plea, there
shall be no appeal if the conviction is by:
a. The HC;
b. The Court of Sessions, Metropolitan Magistrate, JMFC, JMSC, except
as to the legality of the sentence.
ii. The rationale behind the same is that the person taking a plea of guilt
cannot have a problem with the conviction and therefore no appeal shall
lie from it.
iii. If such plea is obtained by way of trickery or influence it shall not be
regarded as a plea of guilt and therefore appeal may lie from it.
iv. By pleading guilty one admits to the commission of the offence; however
he does not accept the sentence passed by the Court regarding the
conviction. Thus, an appeal may lie challenging the extent or legality of
the sentence.
v. An appeal challenging the extent or legality of a sentence cannot lie if
such sentence is passed by the HC.
THE RATIONALE OF APPEALS, REVIEW AND REVISION
1. An appeal is a complaint to a superior court of an injustice done or error

committed by an inferior one, whose judgment or decisions the court above calls
upon to correct or reverse.
2. The Code provides for review by way of appeal or revision.
3. This is so that fair procedure and natural justice may be executed by the Courts in
carrying out their duties.
4. It is also done so that there is a fair opportunity to be heard.
5. It is done to correct any errors on part of the court in the process of administering
justice.
THE MULTIPLE RANGE OF APPELLATE REMEDIES
Supreme Court of India
1. Any person convicted by the HC in the exercise of its original criminal jurisdiction
may appeal to the SC. [Section 374(1)]
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2. When the HC has reversed on appeal, an order of acquittal and sentenced a person
to death or imprisonment for life or imprisonment for a term of 10 years or more,
the accused may appeal to the SC. [Section 379]
3. According to Article 132 of the Constitution, an appeal shall lie from the HC to the
SC in cases where the HC certifies that the case involves a substantive question of
law regarding interpretation of the Constitution.
4. Article 134 further states that an appeal shall lie in the SC from the HC if the HC:
i. Has on appeal reversed an order of acquittal of the accused and sentenced
him to death.
ii. Has withdrawn for trial before itself any case from any court subordinate to
its authority and has in such trial convicted the accused with a sentence of
death;
iii. Certifies under Article 134A that the case was fit for appeal to the SC.
5. Further, Article 136 allows the SC to grant special leave to appeal from any court
or tribunal.
6. Article 134 and Section 379 have been stated in the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970.
High Court
1. Subject to the restrictions relating to appeal to the SC, the option of preferring
appeal to the HC is available to any person convicted on trial by:
i. A Sessions Judge or an Additional Sessions Judge.
ii. Any other court in which the sentence for imprisonment is for a term
exceeding 7 years or against any other person convicted in the same trial.
[Section 374(2)]
Sessions Court
1. Subject to the restrictions relating to appeal to the SC and appeal to the HC, any
person may appeal to the Sessions Court if convicted on trial:
i. By Metropolitan Magistrate, Assistant Sessions Judge, JMFC or JMSC;
ii. Of sentence under Section 325 relating to inability to pass sufficiently
severe punishment
iii. Sentence under Section 360 by any Magistrate. [Section 374(3)]
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2. According to Section 373, Any person who has been ordered under Section 117 to
give security for keeping good behaviour or one who is aggrieved by any order
refusing to accept or rejecting surety under S. 1221, may file an appeal with the
Sessions Court.
3. However, no appeal will lie, if the trial is before a Sessions Judge under S. 122.
Special Right to Appeal
1. Section 380 of the Code when there is more than one person convicted in a trial
and an appealable order is passed in respect of any one of the accused, then all or
any of the persons may file for appeal if convicted under the trial.
2. For example, A, B, C and D are the accused in a trial. C is acquitted. A is the only
one convicted of a sentence for which an appeal may lie. However, B and C may
also file an appeal by way of S. 380.
Government Appeal against Sentencing
1. Section 377 (1) The State Government may, in any case of conviction on a trial
held by any Court other than a High Court, direct the Public Prosecutor to present
an appeal to the High Court against the sentence on the ground of its inadequacy.
2. However, if such conviction is in a case in which the offence has been
investigated by the Delhi Special Police Establishment, constituted under the
Delhi Special Police Establishment Act, 1946, or by any other agency empowered
to make investigation into an offence under any Central Act other than this Code,
the Central Government may also direct the Public Prosecutor to present an
appeal to the High Court against the sentence on the ground of its inadequacy.
3. When an appeal has been filed against the sentence on the ground of its
inadequacy, the High Court shall not enhance the sentence except after giving to
the accused a reasonable opportunity of showing cause against such enhancement.
The accused may also plead for his acquittal or for the reduction of the sentence.
4. Section 378 deals with appeal in cases of acquittal
5. Section 378 (1) states that other than as otherwise provided in sub-section (2) and
subject to the provisions of sub-section (3) and (5), the State Government may, in
any case, direct the Public Prosecutor to present an appeal to the High Court from
an original or appellate order of acquittal passed by any Court other than a High
Court or an order of acquittal passed by the Court of Session in revision.

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6. Section 378 (2) states that if such an order of acquittal is passed in any case in
which the offence has been investigated by Delhi Special Police Establishment
constituted under the Delhi Special Police Establishment Act, 1946 or by any
other agency empowered to make investigation into an offence under any Central
Act other than this Code, the Central Government may also direct the Public
Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the
High Court from the order of acquittal.
7. According to Section 378 (3) no appeal under sub-section (1) or sub-section (2)
shall be entertained except with the leave of the High Court.
8. Section 378(4) states that if such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an application made to it by the
complainant, grants special leave to appeal from the order of acquittal, the
complainant may present such an appeal to the High Court.
9. Section 378 (5) further states that no application for the grant of special leave to
appeal from an order of acquittal shall be entertained by the High Court after the
expiry of six months, where the complainant is a public servant, and sixty days in
every other case, computed from the date of that order of acquittal.
10. If in a case, the application for the grant of special leave to 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).
Judicial Power in Disposal of Appeals
Section 381: Appeal of Sessions Court: how it is to be heard
1. Sessions Judge or Court of An appeal can be heard by the

Sessions or Assistant Sessions Judge Assistant Sessions Judge or CJM when
the conviction is given by the JMSC
2. Additional or Assistant Sessions Shall hear appeals allotted to them by

Judge or CJM the Sessions Judge or the HC by
general or special order.
Section 382: Form of Appeal

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1. The appeal shall be made by way of petition

2. It shall be in writing
3. It shall be presented by the appellant or his pleader
4. It shall be accompanied with a copy of judgment and the order appealed against,
unless the court to which appeal is presented directs otherwise
Section 383: Procedure when the appellant is in jail
When the appellant is under imprisonment, the judgment or order and petition of appeal
MAY be given to the superintendent or officer in charge of the jail who will in turn file
the appeal with appellate criminal court.
1. In the case of Iqbal Ismail Sodawala v. S. O. Maharashtra, it was held that this
provision must be complied with COMPULSORILY.
2. The appellant when in jail, cannot present his petition of appeal him or through
his pleader to the proper appellate court.
3. Even though the section is optional the case law says it must be complied with
compulsorily.
Section 384: Summary dismissal of Appeal
1. The appeal may not heard at length by the appellate court and can be dismissed
summarily.
2. Under Section 382 and 383, when the appeal is filed or on examination of the
petition, judgment or order, if the court is of the opinion that no sufficient grounds
exist for interfering with the order passed, the court may dismiss the appeal.
3. If the appeal is filed under S. 382, the appellant or his pleader shall be given an
opportunity of being heard.
4. If the appeal is filed under S. 383:
i. Reasonable opportunity to be heard shall be given to the appellant unless
the court is of the opinion that the appeal is frivolous and it would be
inconvenient to produce the appellant before it.
ii. It shall not dismiss the appeal summarily until the period allowed for
preferring appeal has expired.
5. The format of the Petition for Appeal is as follows:
i. Paragraph 1 to 4: Facts
ii. Paragraph 5 and 6: Lower Courts Decision

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iii. Paragraph 6 onwards: grounds or reasons for appeal alleging the

grievances against the lower court and shall not contain anything against
the opposite party
iv. Last Paragraph: shall expressly state that the appeal has been filed within
the period of limitation
6. In an appeal no evidence is recorded. However, if the evidence is challenged then
the record and proceedings of the lower court may be called upon by the appellate
court.
7. When the Sessions court or the CJM passes an order for dismissal of an appeal,
reasons for the same must be recorded in writing.
8. Although when the HC passes an order for dismissal and there is an option for
appeal to the SC, reasons need not be given by the HC.
Section 385: Appeal when not dismissed summarily
1. The appellate court shall give a notice stating the day, date, time and place for the
hearing. Such notice shall be issued to the appellant or his pleader or an officer
appointed by the State Government on this behalf.
2. If the appeal is on conviction then a copy shall be sent to the complainant.
3. If the appeal is under S. 377 or S. 378 then a copy shall be given to the accused.
4. The officer, accused or complainant shall be furnished with a copy of the grounds
of appeal in a case.
5. The appellate court shall then call for a copy of the record or proceedings of the
lower court if not already produced. However, if the appeal challenges the extent
or legality of the sentence passed by the lower court, the record or proceedings
need not be called for.
6. If the ground of appeal is only with respect to the severity of the sentence, the
appellant shall not be heard on any other ground except with the leave of the
court.
Section 386: Powers of the Appellate Court
1. When the appeal is filed by the appellant, public prosecutor or under S. 377 or
378, the Appellate Court may:
i. Dismiss the appeal if it is of the opinion of the court that there is no
ground for interfering in the order passed.
ii. When the appeal is from an order of acquittal the court may
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a. reverse the order or

b. direct further enquiry or
c. the accused may be retried or
d. convict the accused for trial or
e. With or without altering the finding, alter the nature or /and extent of
the sentence in order to reduce or enhance the sentence
f. if found guilty, pass a sentence accordingly.
iii. When the appeal is from an order of conviction, the court may
a. Reverse the finding and sentence
b. Acquit or discharge the accused
c. Retry the accused by a competent court
d. Committed for trial.
iv. In an appeal for enhancement of sentence, the court may:
a. Reverse the finding and the sentence
b. Alter the finding and maintain the sentence
c. With or without altering the finding, alter the nature or /and extent of
the sentence in order to reduce or enhance the sentence
v. In an appeal from any other order, reverse the order.
vi. Make any amendment to the order
vii. Pass any order that may be incidental or consequential to the order passed
which is just and proper.
viii. The sentence cannot be enhanced unless the accused may be heard on such
enhancement
ix. Greater punishment may not be passed by the Appellate court.
Section 387: Judgments of Subordinate Appellate Courts
1. Under Chapter 27 of the Code and Rules, when a judgment is given by a criminal
court of original jurisdiction, they shall apply for appeal to the Sessions Court or
the CJM.
2. The accused shall not be brought before the appellate court unless the court
otherwise directs.
Section 388: Order of the HC on appeal to be certified by the lower court

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1. Whenever a case is decided on appeal by the High Court under this Chapter, it
shall certify its judgment or order to the Court by which the finding, sentence or
order appealed against was recorded or passed.
i. If such Court is that of a Judicial Magistrate other than the Chief Judicial
Magistrate, the High Court's judgment or order shall be sent through the
Chief Judicial Magistrate;
ii. Executive Magistrate, the High Court's judgment or order shall be sent
through the District Magistrate.
2. The Court to which the High Court certifies its judgment or order shall then make
such orders as are conformable to the judgment or order of the High Court; and, if
necessary, the record shall be amended accordingly.
Section 389: Suspension of sentence pending the appeal; release of appellant on bail
1. Pending any appeal by a convicted person, the Appellate Court may, for reasons
to be recorded by it in writing, order that the execution of the sentence or order
appealed against be suspended and, if he is in confinement, that he be released on
bail, or on his own bond.
2. The power conferred by this section on an Appellate Court may be exercised also
by the High Court in the case of an appeal by a convicted person to a Court
subordinate to it.
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 such person, being on bail, is sentenced to imprisonment for a term

not exceeding three years, or
ii. where the offence of which such person 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, for such period as will
afford sufficient time to present the appeal and obtain the orders of the
Appellate Court and the sentence of imprisonment shall, so long as he is
so released on bail, be deemed to be suspended.
4. When the appellant is ultimately sentenced to imprisonment for a term or to
imprisonment for life, the time during which he is so released shall be excluded in
computing the term for which he is so sentenced.
Section 390: Arrest of accused in appeal from acquittal

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1. When an appeal is presented under section 378, the High Court may issue a
warrant directing that the accused be arrested and brought before it or any
subordinate Court, and the Court before which he is brought may commit him to
prison pending the disposal of the appeal or admit him to bail.
Section 391: Appellate Court may take further evidence or direct it to be taken
1. In dealing with any appeal under this Chapter, the Appellate Court, if it thinks
additional evidence to be necessary, shall record its reasons and may either
i. take such evidence itself, or direct it to be taken by a Magistrate,
ii. when the Appellate Court is a High Court, by a Court of Session or a
Magistrate.
2. When the additional evidence is taken by the Court of Session or the Magistrate, it
shall certify such evidence to the Appellate Court, and such Court shall 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 as if it were an inquiry.
Section 392: Procedure when Judges of Court of Appeal are equally divided
1. When an appeal is heard by a HC before a Bench of Judges and the Judges are
divided in their opinion, the appeal shall be laid before another Judge of that
Court and the judgment or order shall follow the opinion of such Judge.
2. However, if one of the Judges constituting the Bench or where the appeal is
before any other Judge, if that Judge so requires that the appeal be reheard and
decided by a larger Bench of Judges.
Section 393: Finality in Judgments and Orders in Appeal
1. Section 393 states that judgments or orders when passed on appeal are final
except when the appeal relates to:
i. Inadequacy of sentence
ii. Against acquittal
iii. A regular appeal after the dismissal of jail appeal
iv. An application for revision or reference.

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2. The Court may hear an appeal and dispose of a case on its merits in the following
cases:
i. An appeal against acquittal
ii. An appeal against enhancement of sentence
Section 394: Abatement of Appeals
1. Every appeal against inadequacy of sentence and acquittal shall finally stop on the
death of the accused.
2. Every appeal from conviction also shall abate on death of the accused. There are 2
exceptions however:
i. If leave to continue appeal is granted by the appellate court. Such leave
may be granted to near relatives when the appeal is against conviction,
sentence of death or imprisonment. Near relative means: parent, spouse,
lineal descendant, brother or sister.
ii. When the appeal is from a sentence of fine, it shall not abate. This is
because the fine constitutes liability on the estate of the deceased and legal
representatives of the deceased on whom the liability rests.
22. REFERENCE, REVISION
REVISIONAL JURISDICTION
1. According to Section 397 (1), the HC or the Sessions Court may call for and
examine the record of any proceeding before any inferior criminal court situate
within its local jurisdiction for the purpose of satisfying itself as to the
correctness, legality or propriety of the finding or order of the inferior court.
2. All Magistrates, whether executive or judicial while exercising their original or
appellate jurisdiction shall be deemed to be inferior to the Sessions Judge.
3. The Sessions Judge shall be considered inferior to the HC.
4. During such revision, the execution of any sentence shall be suspended OR if the
accused is in confinement, the accused must be released on bail on his on bond
pending the examination of record.

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5. Section 397 (2) states that the powers of revision cannot be exercised in relation
to any interlocutory order that is passed in an appeal, inquiry, trial or other
proceedings.
6. Section 397 (3) further states that if an application for revision is made to the
Sessions Court or to the High Court, no further application can be made by the
same person and the same shall not be entertained by the other.
7. Section 398 deals with the power to order inquiry.
8. After examining the application under Section 397 or otherwise, the HC or the
Sessions Court may direct the Chief Judicial Magistrate or any other Magistrate
subordinate to him to conduct further inquiry into any complaint dismissed under
i. Section 204 (4) –process fees not being paid; or
ii. Section 203- dismissal of complain due to no sufficient grounds; or
iii. Where a person is accused and then discharged.
9. However, no court shall make any direction for inquiry unless the person has been
given a reasonable opportunity to show cause as to why such directions must not
be made.
10. Section 399 deals with the powers of the Sessions Judge in respect of Revision.
They include:
i. All or any powers exercised by the HC under Section 401(1);
ii. All the powers enjoyed by the HC under Sections 401 (2), (3), (4) and (5);
iii. The order of the Sessions Court shall be treated as final and no further
proceedings by way of revision at the instance of such person shall be
entertained by the HC or any other Court.
11. Section 400 enumerated the powers of the Additional Sessions Judge with respect
to revision which are as follows:
i. All the powers enjoyed by the Sessions Judge under S. 399;
ii. The Additional Sessions Judge shall have the power of revision only when
the Sessions Judge allots certain revision applications by general or special
order.
12. Section 401 deals with the powers of the HC with respect to revision.
13. Section 401 (1) states that in case of any proceeding the record of which the HC
suo moto or which otherwise comes to its knowledge, the High Court may,
in its discretion, exercise any of the powers conferred on a
i. Court of Appeal by sections 386, 389, 390 and 391 or
ii. Court of Session by section 307 and,

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iii. When the Judges composing the Court of revision are equally divided
in opinion, the case shall be disposed of in the manner provided by
section 392.
14. Section 401 (2) states that no order of conviction shall be made to the prejudice of
the accused unless he has been given an opportunity of being heard personally or
through his pleader in his defence.
15. Section 401 (3) provides that the HC does not have the power of converting an
order of acquittal into conviction.
16. Section 401 (4) states that no revision application can be filed when an appeal lies
and no appeal is filed.
17. Section 401 (5) states that if an application if moved under Section 401(1) for
revision and the Court is satisfied that such application is made with erroneous
belief that no appeal lies and it is necessary in the interest of justice to do so, the
HC may treat such an application as a petition of appeal.
18. Section 402 deals with the powers of the HC to transfer or withdraw revision
cases.
19. Whenever one or more persons convicted at the same trial make an application to
a High Court for revision and any other person convicted at the same trial makes
an application to the Sessions Judge for revision, the High Court shall decides
whether all the applications for revision should be disposed of by itself or it shall
direct that the applications for revision made to it be transferred to the Sessions
Judge.
20. Whenever any application for revision is transferred to the High Court, that
Court shall deal with the same as if it were an application duly made before
itself.
21. Whenever any application for revision is transferred to the Sessions Judge, that
Judge shall deal with the same as if it were an application duly made before
himself.
22. Where an application for revision is transferred by the High Court to the
Sessions Judge, no further application for revision shall lie to the High Court or
to any other Court at the instance of the person or persons whose applications
for revision have been disposed of by the Session Judge
23. Section 403 gives the Court an option to hear the parties. No party has any right to
be heard personally or through his pleader in case of an application for revision.
24. The Court may, if it thinks fit, either hear the party in person or through his
pleader while exercising such powers.

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25. If any special proviso is expressly provided under the Code it shall prevail over
this Section.
26. When the record of the trial which is held by the metropolitan Magistrate is called
upon by the HC or the Sessions Court, the Magistrate may submit the reasons for
passing the order and the same shall be considered by the HC or the Sessions
Court while overruling or setting aside the order or decision. (Section 404)
27. Section 405 states that after the HC has passed its order, the lower court shall go
through such order of the HC and if in the interest of justice it is deemed that a
further order be passed, the lower court shall do so in conformity with the order
passed by the HC.
REFERENCE
Section 395: Reference to High Court
1. Where 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 provision contained in
an Act, Ordinance or Regulation, the determination of which is necessary for the
disposal of the case, and is of opinion that such Act, Ordinance, Regulation or
provision is invalid or inoperative, but has not been so declared by the High Court
to which that Court is subordinate or by the Supreme Court, the Court shall state a
case setting out its opinion and the reasons and refer the same for the decision of
the High Court.
2. A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any
case pending before it or him, refer for the decision of the High Court any
question of law arising in the hearing of such case.
3. Any Court making a reference to the High Court pending the decision of the High
Court thereon, either commit the accused to jail or release him on bail to appear
when called upon.
Section 396: Disposal of case according to decision of High Court
1. When a question has been so referred, the High Court shall pass such order as it
thinks fit, and shall cause a copy of such order to be sent to the Court by which
the reference was made, which shall dispose of the case conformably to the said
order.
2. The High Court may direct by whom the costs of such reference shall be paid.

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23. Search & Seizure

SEARCH AND SEIZURE
A search-warrant is a “written authority given to a police officer or other person by a
competent Magistrate or a Court for the search of any place either generally or for
specific things, documents or for persons in wrongful confinement”. According to the
provisions of Cr.P.C, search-warrants can be issued under six circumstances; divided into
four provisions of the Code.
Three of the six circumstances are covered by Section 93 (1) which states as follows:
According to Section 93 (1) (a), a search warrant can be issued “only if a person fails to
produce a document or thing required to be produced under a summon”
A warrant of the search may also be issued when the possessor of a relevant document or
property is “not known to the court”. In such circumstances, the police have the power to
search all suspected places until the document or the thing is discovered and accordingly
seized.
According to Section 93 (1) (c), a general search-warrant can be issued to serve the
purpose of any investigation, inquiry or trial.
A warrant for a search of a place suspected to contain stolen properties, forged

documents, etc. can be issued under Section 94 of the Code. This is the fourth
circumstance when search-warrant can be issued. The essential elements or the crux of
the provision provides that:
- The search-warrant can be “issued only by a District Magistrate, Sub-divisional
Magistrate or Judicial Magistrate First Class” ,
- The person authorized to search “must be a police officer above the rank of a
constable,”
- Before the warrant is issued, the concerned Magistrate must have “sufficient
reason to believe that a place is used for the deposit or sale of stolen property,
etc.”
Where any document such as a newspaper, book or journal contains any libellous or
seditious matter or anything prohibited to be published by the Central or the State
Government is circulated amongst the general public with the intention of spreading it,

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the government may order for forfeiture of every copy of such document containing
prohibited matter.
Lastly, search-warrant can be issued to search a place to find a person who is “confined
under such circumstances that the confinement amounts to an offence under any of the
laws of the country for the time being in force; such as kidnapping or abduction, etc.”
Generally, a search can be conducted only by an authority if a judicial officer.

Nevertheless, Section 165 of the Code is an exception to this general rule. This provision
recognizes that “in certain exceptional emergencies, it is necessary to empower
responsible police officers to carry out searches before applying for a warrant to the
court.”
- The power to search under this Section can be exercised only by the officer-in-
charge of the police station or any officer specifically authorized by such officer-
in-charge,
- The search must be for specific documents or things or materials and not be a
general search,
- The police officer conducting the search must have reasonable grounds to believe
that any specific material or document may be found in that place and it cannot be
otherwise obtained without undue delay.
- Lastly, the police officer must record in writing the ‘reasonable grounds’
aforementioned and provide a copy of the search and seizure memo to the person
in possession of the place of search
When a police officer conducting the investigation has reason to believe that certain
relevant document or material things can be obtained from a place beyond the
jurisdiction of his police station, such officer may ask any other police officer of the
police station that has jurisdiction over such place to make the search on his behalf. The
officer so required to make a search can proceed according to Section 165 and transmit
any document or thing found from such search to the police station where the offence was
committed.
If the police officer has reason to believe that the delay occasioned by requiring an
officer-in-charge of another police station to cause a search to be made as mentioned
above will result in the concealment or destruction of any evidence, the police officer
may himself search such place out of the limits of his police station and such search will
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not be unlawful.
24.BAIL AND ANTICIPATORY BAIL – SECTIONS 436 TO

450
PURPOSE:
• To ensure presence of the Accused at the time of enquiry and trial as well as
he is available to receive conviction or sentence.
• If not granted – loss to social and financial society – do not grant bail if the
crime is serious.
• In serious cases + in situations where there is strong evidence – do not grant
bail because –
a. Destroy evidence
b. Tamper with the witness
c. Commit more offences
• Conflict of bail –
➢ Requirement of the society to be shielded from hazards of a person

alleged to have committed a crime.
➢ Presumption of innocence and liberty of person.
BAIL:
Bail is a declaration made by the accused that he shall not flee if enlarged on bail and
shall not absent himself from any inquiry or legal proceeding he is required to attend. The
court if deems fit may pass an order to enlarge the person on bail. For a deeper
understanding, it needs to be stated that Bail is of two types
1. Mandatory Bail
2. Discretionary Bail
The provisions specifically dealing with Mandatory Bail is Section 436 of the
CrPC. This provision entails that the person arrested without the warrant of the officer of
the court, the person shall be released on bail.
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Difference between Mandatory and Discretionary Bail:
From the above-mentioned bails, it is very clear that mandatory bail is a matter of right
given to a person who is accused of a bailable offence in the CrPC itself by the legislature
to ensure that a person is not deprived of his liberty in times of accusations which may
not be very serious in nature.
On the other hand, discretionary bail gives a discretion to the court to apply its judicial
mind and only then decide whether an accused is worthy of the grant of bail by the
court. It is only if the court sees that there is a reasonable ground that he may be
released on bail since the person is charged with the commission of a Non-bailable
offence.
• The term 'bail' has not been specified in the Code of Criminal Procedure,
1973.
• However, Section 2(a) of CrPC deals with "bailable offense" and "non-
bailable offense" and is defined as an offense which is shown to be bailable in
the First Schedule or which has been made to be bailable by any other law for
the time being in force; and "non-bailable offense" means any other offence.
• Security for the appearance of the Accused person on giving which he is
released pending trial or investigation.
• To procure the release of a person in legal custody by undertaking security for
production of the person on bail to court when required or requested.
• Can apply for any number of times – but chances reduce.
Gurcharan Singh v. Delhi Administration. The grounds laid down by the court are in
the form of questions which need to answer before determining the grant of bail. These
factors are:
1. Whether there is sufficient evidence to show that accused might have committed
the offence alleged against him?
2. What is the nature and seriousness of the charge?
3. What is the severity of a punishment that the accused might be subjected to in
case of a conviction?
4. Whether there is a likelihood of the accused absconding from the police.

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5. What is the character, status and standing of the accused person in the society or
locality?
6. Whether there is a likelihood of the accused hindering or tampering the evidence
to be used against him
• Section 439 of CrPC –

➢ Special powers have been vested upon the Courts of Session and High
Courts to grant bail to an accused arrested by the officer in charge of a
police station for the commission of a cognizable offence.
.
• The accused must be arrested without a warrant and he must be under the custody
of the police to allow the Court to grant bail.
• The accused must be ready and willing to furnish the amount of bail as decided
by the Court.
• If the court has reason to believe that the accused might be guilty of an offence
punishable with death or imprisonment for life, it may impose conditions
necessary to ensure his attendance during the trial.
The court must give notice of the application for bail to the public prosecutor to ensure
him an opportunity to reply or give his opinion on such bail. If the court deems it
unnecessary or unreasonable to give notice to the Public Prosecutor, the court must give
reasons in writing for doing so.
The Court may impose any condition which the Court considers necessary-
1. in order to ensure that such person shall attend the trial in accordance with the
conditions of the bond or
2. in order to ensure that such person shall not commit an offence similar to the
offence of which he is accused or of the commission of which he is suspected, or
3. otherwise in the interests of justice.
There is no ban on the superior courts against granting bail to a person accused of an
offence punishable with death or life imprisonment.
➢ Any condition imposed by a Magistrate when releasing any person on

bail be set aside or modified.
➢ Therefore, the High Court and the Court of Sessions have at
concurrent jurisdiction over the granting of bail pursuant to

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Section 439 of CrPC.

➢ However, it is deemed appropriate for the High Court to move the
lower courts in this matter first.
➢ In Hajialisher v. State of Rajasthan, the Court held that it was only
in extraordinary or unusual circumstances that the High Court could
transfer, first or directly, for a bail application. Generally, these cases
are referred first to the lower courts.
➢ Power of High Court is Independent - Even after a bail application is
rejected by the Court of Session, a person in custody can move the
High Court for bail under Section 439 (1), because in such cases the
High Court is not exercising any revisional power, but exercises a
special power.
➢ A High Court or Court of Session may direct that any person accused
of an offence and in custody be released on bail, and if the offence is
of the nature specified in sub-section (3) of section 437, may impose
any condition which it considers necessary for the purposes mentioned
in that sub-section
• Grant of Bail –
➢ The facts and circumstances of each case will govern the exercise of
discretion in granting or canceling bail.
➢ The two paramount considerations are:
i. Likelihood of the accused fleeing from justice.
ii. His tampering with prosecution evidence.
• Circumstances where bail is mandatory –
➢ When the arrestee is not accused of a non-bailable offence – can be

released on bond or without surety as well [Section 440(1)].
➢ Where investigation is not complete within the time prescribed –
Person cannot be detained in police custody for more than 24 hours –
has to be produced before a Magistrate (Section 167).
➢ No reasonable grounds exist for believing the Accused is guilty of a
non-bailable offence [Section 437(2)].
➢ Where trial before Magistrate could not be concluded within 60 days
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[Section 437(6)].
➢ Where no reasonable grounds exist for believing the Accused guilty,

after trial, but before judgment [Section 437(7)].
ANTICIPATORY BAIL:
• “Anticipatory bail” means, “bail in anticipation of arrest”.
• Anticipatory bail is a misnomer inasmuch as it is not as if bail is presently

granted by the court in anticipation of arrest.
• When 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.
• Section 438 of CrPC –
➢ Section 438(1) - Direction for grant of bail to person apprehending

arrest.
➢ When any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence, he may apply to
the High Court or the Court of Session for a direction under this section;
and that Court may, if it thinks fit, direct that in the event of such arrest, he
shall be released on bail.
• Conditions – Section 438(2) –
i. A condition that the person shall make himself available for

interrogation by a police officer as and when required;
ii. A condition that the person shall not, directly or indirectly, make any
inducement, threat or promise;
iii. A condition that the person shall not leave India without the previous
permission of the Court;
iv. Such other condition as may be imposed under sub- section (3) of
section 437, as if the bail were granted under that section.
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• Process on Arrest – Section 438(3) –
➢ If such person is thereafter arrested without warrant by an officer in

charge of a police station on such accusation, and is prepared either at
the time of arrest or at any time while in the custody of such officer to
give bail, be shall be released on bail.
➢ If a Magistrate taking cognizance of such offence decides that a
warrant should issue in the first instance against that person, he shall
issue a bailable warrant in conformity with the direction of the Court
under sub- section (1).
• Power to grant anticipatory bail vests only in the High Courts or the
Courts of Sessions.
• Anticipatory bail can be applied at different stages –
➢ FIR is not filed.
➢ FIR is filed – after notice to the public Prosecutor, the Court can grant
anticipatory bail.
Gurbaksh Singh Sibia & Ors. v State of Punjab
Law declared by the Constitution Bench in the case was that the power vested by the
Parliament on superior criminal courts in the order of hierarchy, such as Sessions
Court and High Court, is a power entailing conferment of absolute discretion in
deciding whether an application for anticipatory bail may be allowed or rejected, and
also inheres in this discretion, the additional power to limit the duration of
anticipatory bail to any point in time, or to any stage as the Court may deem fit
in the facts and circumstances of the case, and in view of all attending circumstances.
It was also held that the order granting anticipatory bail will not interdict the power of
the investigating agency to continue investigation.
Conditions laid down in this case –

1. Ordinary bail is different from anticipatory bail because the primary one is
effective after the person is taken into custody. It means first the person is arrested
then released on bail. In the latter, i.e. anticipatory bail, it is operative from the

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duration of the arrest. It means the person can be released even from getting
arrested.
2. The powers can be exercised by the Sessions Court and High Court and it is a
carte blanche power with broad discretion.
3. The competent courts must use their brain and application of subtle mind and
should not allow the Magistrate to decide whether bail should be granted or not
under § 437 of Cr.P.C.
4. Anticipatory bail orders are not blanket orders. The person anticipating detention
must have bona fide reasons to believe that he may be arrested by police for an
offence. Such belief is sine qua non to the court’s power to grant bail and vague
apprehension that he may be arrested for a non-bailable offence so that the court
may take care to specify the offence or offences in respect of which alone order
will be effective and not a blanket order.
5. The courts while deciding on the question of anticipatory bail, must conform to
the requirements of § 438 Cr.P.C and rules made thereunder. The court may
impose conditions as it requires or deems fit to allow the accused to appear before
it when required during the trial if any. The court, further, must give notice to the
Prosecutor of such application for grant of anticipatory bail but it may give such
notice after disposing of the application.
6. The court cannot restrict the duration of the bail order by specifying any specific
time for which it shall be operative.
7. It has been a common phenomenon that rivals lodge false FIRs and wrong cases
to tarnish the image of their opponents or to humiliate them. If it appears to the
courts deciding on anticipatory bail that the offence accused of is due to some
ulterior motive or hidden conspiracy, the court should allow the bail provided the
court ensures to its satisfaction that the person will not flee from justice.
8. The court held that it is not necessary that an FIR must be lodged against the
person desirous of anticipatory bail to prove his apprehension.
9. An anticipatory bail order has no effect on the power of the police to investigate,
i.e. to interrogate the accused, search his place and seize anything that can be
incriminating provided it is done lawfully.
Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors.
Factors and parameters to be considered by the court while dealing with the
anticipatory bail
The court laid down the following factors and parameters that can be taken into
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consideration by the court while dealing with the anticipatory bail and said these are
not exhaustive but only illustrative –
i. The nature and gravity of the accusation and the exact role of the accused
must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused
has previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence.
iii. The possibility of the applicant to flee from justice.
iv. The possibility of the accused's likelihood to repeat similar or the other
offences.
v. Where the accusations have been made only with the object of injuring or
humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude
affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very
carefully. The court must also clearly comprehend the exact role of the accused in
the case. The cases in which accused is implicated with the help of Sections 34
and 149 of the Indian Penal Code, the court should consider with even greater care
and caution because over implication in the cases is a matter of common
knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be
struck between two factors namely; no prejudice should be caused to the free, fair
and full
ix. Investigation and there should be prevention of harassment, humiliation and
unjustified detention of the accused.
x. The court to consider reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant;
xi. Frivolity in prosecution should always be considered and it is only the element of
genuineness that shall have to be considered in the matter of grant of bail and in
the event of there being some doubt as to the genuineness of the prosecution, in
the normal course of events, the accused is entitled to an order of bail.
Should pre-arrest bail granted under Section 438 be time bound?
Two very important aspects in Section 438(3), which are relevant to be considered to
understand the scheme of the code.
1. A person in whose favour a pre-arrest bail order has been made under Section 438
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has first to be arrested. Such a person is then released on nail on the basis of pre-
arrest bail order. For such release, the person has to comply with the requirements
of Section 441 of giving bond or surety.
2. Where the Magistrate taking cognizance under Section 204 is of the view that a
warrant is required to be issued at the first instance, such Magistrate is only
empowered to issue only a bailable warrant and not a non-bailable warrant.
This curtailment of power of the Magistrate clearly shows the intent of the
legislature that a person who has been granted bail under Section 438 ought to not
be arrested at the stage of cognizance because of the pre-arrest bail order.
• Vital Parameters or Conditions for Anticipatory Bail –
i. Whether there is any prima facie or reasonable ground to believe that the
accused had or had not committed the offence;
ii. Whether the accusation has been made with the object of injuring or
humiliating the Petitioner by having him so arrested.
iii. Whether a fit case for custodial interrogation.
iv. Whether the Petitioner has joined the investigation or is prepared to join
the same.
v. All other considerations applicable in the Case of a regular Bail.
Rules –
• Bail, not jail, is the rule
• S-438 (1) is got to be interpreted in the light of Article 21 of Constitution

Entitlement of Police to arrest is different from justification of arrest - While
granting bail balance has to be struck between two factors, the right of Police to
conduct investigations and right of the Accused. On the one hand, no prejudice
should be caused to the free and fair investigation and on the other, there should be
prevention of harassment, humiliation, and unjustified detention of the accused.
• There is no straight jacket formula for granting or rejection of Bail Applications -
The Powers of granting Bail, being discretionary, have to be exercised/ applied in
the light of the circumstances of each Case, as each case depends upon its own

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facts and circumstances.

• Frivolity in prosecution – in the even of there being some doubt to the
genuineness, the accused may be granted bail.
FACTORS TO BE TAKEN AS TOUCHSTONE OF REASONABLENESS:
a. The apprehension of tempering witnesses Apprehension of threat to the Complaint
b. Post arrest factors –
i. Flee from justice
ii. Tempering with witnesses
iii. Repeat of the offence
BAIL CASE:
Kalyan Chnadra Sarkar v. Rajesh Ranjan, Pappu Yadav & Anr.
• In the said case the said respondent is charged for offences punishable under
Sections 302 read with 34, 307 read with 34, 120-B, 302/307 IPC and Section 27 of
the Arms Act.
• After rejection of four bail applications earlier, the respondent filed a 5th
application - which came to be allowed by the High Court on the sole ground that
since the respondent accused was under detention for more than one year, he should
be releasedon bail without going into any other aspect of the case.
• High Court while granting the bail did not keep in mind the requirement of Section
437(1)(i) of Cr. P.C. – 9 bail applications were made.
• In these appeals Additional Solicitor General appearing for the CBI and, senior
advocate appearing for the complainant, Kalyan Chandra Sarkar argued that
entertainment of the 9th bail application by the High Court on the very same
grounds as those urged in the earlier petitions without there being any new facts or
grounds amounts to an abuse of the process of the court and is in derogation of the
earlier orders passed by this Court.

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• The learned counsel for the appellants have contended that in almost all the
proceedings when the bail was refused the court had considered the existence of
prima facie case and have given a finding in this regard.
• Since the confession of co- accused cannot be used as substantive evidence and
there being no other material on record there is no possibility of his conviction in
the case. Therefore, he should be enlarged on bail.
• It was further argued that- It is on the very same grounds as those urged in the
earlier petitions without there being any new facts or grounds amounts to an abuse
of the process of the court and is in derogation of the earlier orders passed by
this Court.
• Therefore, in the absence of any new or fresh ground, it was not open to the
High Court to have reconsidered the same material and overruled the earlier
findings of the court in the guise of considering afresh the existence of a prima
facie case. Therefore, it was held that the High Court was totally in error in
allowing the bailapplication of the respondent by the impugned order.
• The Supreme Court therefore, allowed the appeal, quash the impugned order of the
High Court and dismiss the bail application made by the respondent in Criminal
Miscellaneous.
25.JUVENILE JUSTICE (Care and Protection of Children) ACT,

2000
HISTORY OF THE JUVENILE JUSTICE ACT
1. The CrPC of 1898 contained provisions with respect to care and protection of
juveniles along with procedural aspects.
2. Later, States began to enact their own laws regarding juveniles such as the:
i. Bombay Children Act, 1924;
ii. Bombay Children Act, 1948;

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iii. U.P. Children Act, 1951;

iv. West Bengal Children Act, 1959;
v. Rajasthan Children Act, 1970;
vi. Bihar Children Act, 1982, and
vii. The Children Act, 1960 applicable to UT’s only.
3. Other enactments on the subject were:
i. The Reformatory Schools Act, 1897;
ii. Bihar Borstal Schools Act, 1962;
iii. Women and Children Institutions (Licensing) Act, 1956.
4. There were some major amendments to the CrPC in 1973 such as:
i. The age of a minor increased from 15 years to 16 years.
ii. S. 27 stated that any offence not punishable with death or imprisonment for
life by a person below the age of 16 years may be brought before the CJM or
special court or special officer under the Children’s Act.
5. Treatment, training an rehabilitation was used instead of custody and trial.
6. The National Policy for Children came into existence in 1974.
7. The Children Act of 1960 was reviewed and the Juvenile Justice Act, 1986 was
enacted, replacing the Childrens Act.
8. S. 4 of the CrPC lays down that the procedure regarding the procedure, inquiry and
trial of the offender. However, if any law provides for any special procedure the same
shall be followed.
9. The JJA is more of a procedural law and overrides certain provisions of the NDPS
Act, TADA, Dacoity Affected Areas Act, National Securities Act.
10. The JJA was majorly amended and the 1986 was repealed and now the Juvenile
Justice (Care and Protection of Children) Act, 2000 has been enacted.
FUNDAMENTAL PRINCIPLES OF JUVENILE JUSTICE (conflict with law part)
The following principles shall, be fundamental to the application, interpretation and

implementation of the Act and the rules made hereunder:
1. Principle Right to Innocence.

i. A juvenile or child or juvenile in conflict with law is presumed to be innocent
of any malafide or criminal intent up to the age of 18 years.

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ii. The juvenile or juveniles in conflict with law or child's right to presumption of
innocence shall be respected throughout the process of justice and protection,
from the initial contact to alternative care, including aftercare.
iii. Any unlawful conduct of a juvenile or a child or a juvenile in conflict with

law which is done for survival, or is due to environmental or situational factors
or is done under control of adults, or peer groups, is ought to be covered by the
principles of innocence.
iv. Example: Doli incapax under IPC where a child is given absolute immunity.
2. Principle of Best Interest:

i. In all decisions taken within the context of administration of juvenile justice,
the principle of best interest of the juvenile or the juvenile in conflict with law
or child shall be the primary consideration.
ii. The principle of best interest of the juvenile or juvenile in conflict with law or
child shall mean for instance that the traditional objectives of criminal justice,
retribution and repression, must give way to rehabilitative and restorative
objectives of juvenile justice.
iii. This principle seeks to ensure physical, emotional, intellectual, social and
moral development of a juvenile in conflict with law or child so as to ensure
the safety, well being and permanence for each child and thus enable each
child to survive and reach his or her full potential
3. Principle of Family Responsibility

i. The family - biological, adoptive or foster (in that order), must be held
responsible and provide necessary care, support and protection to the juvenile
or child under their care and custody under the Act, unless the best interest
measures or mandates dictate otherwise.
4. Principle of Safety (no harm, no abuse, no neglect, no exploitation and no

maltreatment):
i. At all stages, from the initial contact till such time he remains in contact with
the care and protection system, and thereafter, the juvenile or child or juvenile

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in conflict with law shall not be subjected to any harm, abuse, neglect,
maltreatment, corporal punishment or solitary or otherwise any confinement in
jails and extreme care shall be taken to avoid any harm to the sensitivity of the
juvenile or the child.
ii. The state has a greater responsibility for ensuring safety of every child in its
care and protection, without resorting to restrictive measures and processes in
the name of care and protection.
5. Principle of non-stigmatizing semantics, decisions and actions:

i. The non-stigmatizing semantics of the Act must be strictly adhered to, and the
use of adversarial or accusatory words, prohibited in the processes pertaining
to the child or juvenile in conflict with law under the Act, such as,
a. arrest,
b. remand,
c. accused,
d. charge sheet,
e. trial,
f. prosecution,
g. warrant,
h. summons,
i. conviction,
j. inmate,
k. delinquent,
l. neglected,
m. custody or
n. jail.
6. Principle of Balancing
i. It aims to balance both the Act and the Constitutional safeguards and social
ethics in dispensing matters relating to juveniles.
7. Principle of non-waiver of rights

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i. It means that there shall be no waiver of rights by the juvenile himself or the
competent authority or anyone acting on behalf or claiming to act on behalf of
the juvenile or child. Actions otherwise shall not be permissible.
8. Principle of right to privacy and confidentiality:

i. The juvenile's or child's right to privacy and confidentiality shall be protected
by all means and through all the stages of the proceedings and care and
protection processes.
9. Principle of last resort:

i. Institutionalization of a child or juvenile in conflict with law shall be a step of
the last resort after reasonable inquiry and that too for the minimum possible
duration.
10. Principle of repatriation and restoration:

i. Every juvenile or child or juvenile in conflict with law has the right to be re-
united with his family and restored back to the same socio-economic and
cultural status that such juvenile or child enjoyed before coming within the
purview of the Act or becoming vulnerable to any form of neglect, abuse or
exploitation.
11. Principle of Fresh Start

i. The principle of fresh start promotes new beginning for the child or juvenile in
conflict with law by ensuring erasure of his past records.
ii. The State shall seek to promote measures for dealing with children alleged or
recognized as having impinged the penal law, without resorting to judicial
proceedings.
12. Principle of Equality

i. The shall be an equality of access and opportunities; no discrimination on the
basis of sex, age, caste, place of birth, work activity, disability, status, cultural

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activity or his parents or guardian including civil or political status shall be

done.
Child in Conflict with Law
“Child in Conflict with Law” has been defined under Section 2 (l3) of the Juvenile Justice
(Care & Protection of Children) Act, 2015 as a child who is alleged or found to have
committed an offence and has not completed eighteen years of age on the date of commission
of such offence.
Child in Conflict with Law
“Child in Conflict with Law” has been defined under Section 2 (l3) of the Juvenile Justice
(Care & Protection of Children) Act, 2015 as a child who is alleged or found to have
committed an offence and has not completed eighteen years of age on the date of commission
of such offence
Procedure in relation to Children in Conflict with Law

Chapter IV of the Juvenile Justice Act, 2015 talks about the Procedure in Relation to Children
in Conflict in Law.
Section 10 of the Juvenile Justice ( Care and Protection of Children ) Act talks about the
apprehension of a child alleged to be in conflict with the law.
The following is the Stepwise procedure to be followed for the apprehension of the child in a
conflict of law:
1. Firstly, the police will inform the Special Juvenile Police Unit about the same.
After this, the case will be forwarded to Child Welfare Police Officer of the
concerned police station and in order to keep a record of the case, there will be an
entry made in the track child portal.
2. Secondly, there will be the filing of DDR in case of Petty offense, an FIR will be
filed for serious crimes or heinous crimes which will depend upon the nature of
offense which the alleged child has committed.

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Note: FIR is recorded by the police for cases involving cognizable offenses. The other reports
records and cases involving non-cognizable offenses are recorded in daily diary register
(DDR).
1. Thirdly, the child will be sent for a medical examination. This examination shall
be carried out by designated Child Wellbeing and Protection Officer (CWPO) or
Special Juvenile Police Unit (SJPU). Furthermore, the information about the
apprehension shall be sent to the parents and Probation officer to carry out the
investigation.
2. Fourthly, the alleged child shall be produced before a Juvenile Justice Board
within 24 hours by the designated Child Welfare Police officer. However, if the
board is not in session, the child alleged to be in conflict with the law will be
produced before a single member of the Board.
3. Fifthly, after the child has been produced before the relevant authority, for the time
being, the child may be sent to Observation Home/ Place of Safety for temporary
shelter or the child may be bailed out of the board.
4. Sixthly, the designated Child Wellbeing and Protection Officer (CWPO) shall
forward the information to DCPU and SALSA in order to assess whether free legal
aid is required for the Child alleged to be in conflict with the law.
Procedure on the production of the child accused who is in conflict with the law (Section
14 and Section 15 of the Juvenile Justice Act 2015)
1. The child who has been alleged to be in conflict with the law has to be produced
before the Board within the 24 hours of his apprehension.
2. The board shall conduct an inquiry in compliance with the provisions of the act
and it may pass such orders in relation to such a child as it deems fit in accordance
with Section 17 and Section 18 of the Juvenile Justice Act, 2015.
3. In case there is a case of heinous offense, then a preliminary assessment
under Section 15 must be disposed of by the Board within a period of 3 months from
the date when the child was produced before the board for the first time.
JUVENILE: MEANING AND DEFINITION

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1. Section 2(e) of the 1986 Act states that a “delinquent juvenile” means a juvenile who
has been found to have committed an offence.
2. Section 2 (c) of the 2000 Act gives the definition of “juvenile in conflict with the law”
as a juvenile who is alleged to have committed an offence and who has not completed
18 years of age as on date of commission of the offence.
APPREHENSION AND PRODUCTION
1. S. 2 (k) states that a juvenile is a person who has not completed 18 years of age.
2. A juvenile in conflict with the law must be produced before the Juvenile Justice
Board.
3. Section 10 of the Act states:
i. As soon as a juvenile in conflict with law is apprehended by police, he shall be
placed under the charge of the Special Juvenile Police unit or the Designated
Police Officer who shall immediately report the matter to a member of the
Board and the juvenile must be produced before the Board within 24 hours.
ii. Such juvenile shall be received and interviewed in a friendly manner. Further,
a juvenile cannot be interrogated for more than 24 hours.
iii. Further the juvenile shall be sent to an observation home.
4. Section 2(o) defines observation home as a home established by the State Government
or by a voluntary organisation and certified by the State Government in this regard.
5. The decision taken by any member of the Board shall be ratified by another member
as per Section 5(2).
6. The juvenile however cannot be kept in police lock-up.
7. Section 13 further elucidates on providing information to the parent, guardian or the
Probation Officer. As soon as the juvenile is arrested, the officer in charge of the
police station or the special juvenile unit shall inform the parent, guardian or the
Probation Officer. He shall then be directed to be present before the Board.
8. The Probation Officer shall at this time check the background of the juvenile and
other material information that will assist the Board in making their decision.
9. Section 11 states that the person in whose charge the juvenile is will have control over
the juvenile as he would if he were his parents and shall be responsible for his
maintenance.

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10. Even if an application is made by the parents or guardian of the juvenile for his
custody, the same may be rejected and custody will remain with such authority.
11. Bail of Juvenile (Section 12):

i. Bail may be granted to a juvenile.
ii. This section has an overriding effect over the CrPC.
iii. Bail may be granted with or without surety or the person may be placed under
the supervision of the Probation Officer or under the supervision and care of
any fit person or institution.
iv. There are 3 circumstances under which an application for bail may be rejected:
a. The release is likely to bring the juvenile in association with known
criminals.
b. Such release shall expose the juvenile to moral, physical or psychological
danger.
c. Release would defeat the ends of justice.
v. In the case of Sanjay Kumar v. State of UP, a juvenile was not granted bail
whereas in the case of Mata Prasad v. State of Rajasthan, it was stated that
normally a juvenile in conflict with the law should be released on bail unless
there is some ground to believe that any of the above 3 reasons exist.
vi. In the case of Rahul Misra v. MP, the juvenile was charged with murder and
other sections of the IPC. It was proved that the juvenile was not present at the
scene of the crime at the time the offence was committed. Hence, bail was
rejected.
However, the HC stated that dealing with the grant of bail, the juvenile may
appear to be guilty of the offence prima facie, but he was favourably
considered and protected for grant of bail and directed that he be released on
bail on execution of a bond.
[NOTE: Important questions:
i. How is a case of a juvenile in conflict with the law dealt with? OR

ii. How does a trial of juvenile take place?
Answer: Juvenile: meaning and definition
Apprehension and Production]

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JUVENILE JUSTICE BOARD
1. Constitution of the Juvenile Justice Board (JJB) –Section 4
i. JJB shall be set up by the State Government. There shall be one JJB for each
district or one JJB for several districts.
ii. The Board shall consist of 3 members:
a. One a judicial magistrate or metropolitan magistrate.
b. Two shall be social workers having experience in the field of children, one
of whom shall be a woman.
iii. All the powers of the Judicial Magistrate are conferred on the JJB as per the
provisions of the CrPC.
iv. To become a member of the JJB, the Judicial Magistrate will have to receive
training and he should be qualified with training in child psychology and child
welfare.
v. The term of office of the JJB is as per the rules prescribed by the State
Government from time to time.
vi. A member shall have tenure of 3 years and shall be eligible for re-appointment
for a second tenure only.
vii. A member may be terminated for the following reasons:
a. Misuse of power
b. Guilty of an offence, the judgment having not been reversed on appeal or
revision.
c. He has not been given pardon of the Court.
d. If he does not attend meeting for 3 consecutive months
e. If he does not attend 3/4th the sittings of the JJB.
2. For final disposal of a case, it is necessary that at least a 2 member quorum exist to
give the decision, of which one must be the JMFC or Metropolitan Magistrate.
3. If there is a majority is not obtained then the opinion of the principle member or the
principle Magistrate prevails.
4. The powers of the JJB include:
a. To call for documents,

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b. To call for witnesses,

c. To issue summons,
d. To check if evidence has been properly recorded.
5. The Jurisdiction of the JJB ousts the jurisdiction of any other criminal court to look
into matters relating to juveniles in conflict with law.
6. Time and Place of sitting of the Board (Rule 4)

i. As far as it is possible, the JJB shall sit in the premises of the observation
home or any other suitable place.
ii. It shall be at such time as prescribed by the Board from time to time.
iii. Sittings shall be held on all working days.
7. Rule 12 allows the State Government to advertise in the news paper for filling the
post of JJB members and any other post calling persons. Such persons are then
accordingly listed. Such list may further be used in case of any casual vacancies or
resignations.
8. Such casual vacancy when filled by a new member will allow him to hold a tenure
only until the office of his predecessor.
9. Rule 13 enlists the qualifications of the Chairperson and Members of the JJB
i. Age of a member should not be less than 35 years and shall not exceed 65
years. This does not apply to the JMFC or the Metropolitan Magistrate and he
is directly appointed by the state government.
ii. The JMFC or the Metropolitan Magistrate should have undergone special
training in child psychology and child welfare.
iii. All members are required to possess a degree in any of the social sciences
such as psychology, sociology, criminology, economics, physic, home
sciences, social work, law, medicine, rural development, etc.
iv. The members shout not be personally connected or associated with any
adoption agency which in is conflict of interest with the Act.
10. It is the duty of the State Government to ensure training of the members of the JJB
from time to time on topics related to children.

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11. Rule 13 also method by way of which one may resign.

i. The copy of application for resignation should be given to the state
government and the JMFC or the Metropolitan Magistrate.
ii. Until the state government accepts such resignation he shall remain a member.
iii. Such resignation shall be given one month in advance.
iv. JMFC or the Metropolitan Magistrate shall directly give their resignation to
the state government.
12. Rule 14 deals with Remuneration or Honorarium to the Members
i. It shall be fixed by the state government.
ii. Members are entitled travelling allowance, meeting allowance, etc. as would
be given to Class I employees.
iii. Such honorarium is paid by the State Government.
13. Section 7 deals with the procedure to be followed by the Magistrate not empowered
by the Act.
i. When any Magistrate has knowledge that the person before it is a juvenile
(except a child witness), he shall record the finding of such opinion and
forward the juvenile to the concerned competent authority.
ii. The competent authority shall then deal with the juvenile as if the juvenile had
originally been brought before it.
14. Section 7A of the JJA was inserted by way of amendment of 2006 which deals with
the defence of juvenility which may be taken at any stage and can be raised in any
court.
i. The court shall make an enquiry and take such evidence to determine the age
of the person.
ii. The evidence which the court shall admit shall not include an affidavit and
shall take into consideration an estimation of the age of the person.
iii. Such defence may be taken even after the final disposal of the case.
iv. When such defence is stated, a medical examination of the person claiming
juvenility is conducted.
v. The court is empowered to call upon an expert to receive his opinion regarding
determination of age of such person.
vi. The court may also appoint a medical examiner and direct him to tender a
report.

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vii. If the person is a juvenile then the court shall forward the juvenile to the JJB
for the passing of relevant orders and sentence if passed by the court shall not
take effect.
15. Section 6 is a special section which prevails over other sections. It empowers the HC
and the Sessions Court to exercise the powers conferred on the JJB in case of appeal,
revision or otherwise.
INQUIRY
1. Section 3 of the Act deals with continuation of inquiry after the person ceases to be a
juvenile.
i. This is a special provision and prevails over all other provisions of law.
ii. When an inquiry starts and the concerned juvenile in conflict with the law
ceases to be a juvenile during the course of such inquiry, the inquiry maybe
continue and order may be made in respect of such person as if such person
continues to be a juvenile or child.
2. Section 14 deals with inquiry before the Board
i. As far as possible, inquiry must be completed within 4 months from the date
of commencement.
ii. Inquiry is required to be conducted in accordance with the provisions of the
Act.
iii. The Board is given the power to increase the said period for inquiry in special
cases after recording the reasons for the same in writing.
3. Section 47 relates to dispensing with attendance of the juvenile.
i. Normally in a criminal trial, it is mandatory for the person convicted of an
offence to attend the criminal trial all the time.
ii. However, under this section, the Board is empowered to dispense the presence
or attendance of a juvenile in conflict with the law at any stage during the
proceedings.
4. Section 46 empowers the JJB to direct whomsoever it deems fit to attend the
proceedings including the parent, guardian or the child.
5. Section 54(1) lays down the procedure for conducting the inquiry.

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i. This section states that when inquiry is being carried out in case of a juvenile
in conflict with the law, if any special procedure is provided by the Act, the
same shall be complied with.
ii. However, if no such procedure has been provided then the procedure as laid
out in the CrPC in summons cases shall be followed.
iii. In the case of B.B. Dasgupta v. State of Punjab it was held that though it is a
general principle of law that the inquiry or trial in each case should be held in
presence of the accused, and the same is applicable even to a juvenile in
conflict with the law, competent authority can dispense the attendance of the
juvenile if it deems fit to do so.
OFFENCES AND PUNISHMENT
S. Section Type of Offence Particulars Punishment

No.
1. 23 Cruelty to Juvenile i. If the person who has Shall be imprisoned
actual charge of the juvenile or with imprisonment
control over the juvenile not exceeding 6
assaults, abandons, exposes or months or fine or both
wilfully neglects the juvenile or
child; or
ii. Such person in charge or
control causes or procures him
to be assaulted, abandoned,
exposed or neglected
So as to cause mental or
physical suffering to the
juvenile shall be punishable
2. 24 Employing the juvenile i. Whoever, emplys or uses Shall be punished
for begging or abetting in any juvenile or child for the with imprisonment
the commission of a purpose of begging or causes that may extend to 2
crime. him to beg, or to 3 years and fine

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ii. Whoever having actual Shall be imprisoned

charge or control of the juvenile for a period not
abets the commission of such exceeding one year
crime as stated herein shall be and fine.
punished.
3. 25 Giving liquor, narcotic Whoever gives or causes giving of Imprisonment which

drugs or psychotropic intoxicating substances in public shall extend upto 3
substances to a child places, narcotic drugs or years and fine.
psychotropic substances to a
juvenile except on an order of a
duly qualified medical practitioner
or in case of sickness shall be
punished.
4. 26 Exploitation of a juvenile Whoever ostensibly procures a
or child employee juvenile:
i. For the purpose of
hazardous employment; or
ii. Keeps the juvenile in
bondage; or
5. 21 Prohibition from i. No report in any Penalty which may
publication of name of the newspaper, magazine or any extend to Rs. 25,000.
juvenile, and other details. visual media of the inquiry of a
juvenile child shall be made
available.
ii. No information, picture,
school of the juvenile shall be
made available that would lead
to identification of the juvenile
except when a competent
authority permits in writing the
same in the interest of the
juvenile.

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Section 27 of the Act states that the offences under S. 23, 24, 25 and 26 shall be cognizable.
6. Section 28 talks about alternative punishment. When an act or omission constitute an
offence punishable under the Act or any other Central or State Act then the offender
shall be liable for punishment to greater degrees of punishment for such offence.
7. The Rules further state that any offence under Section 23 to 26 shall be either bailable
or non-bailable besides being cognisable under the provisions of CrPC and provisions
of bail shall apply.
OTHER PROVISIONS RELATING TO THE JUVENILE JUSTICE BOARD
1. Section 15 states what orders the JJB can pass:

i. Allow the juvenile to go home after admonition.
ii. Counselling to the parent or guardian.
iii. Direct the juvenile to participate in group counselling and such similar activities.
iv. Order the juvenile to perform community service.
v. If the juvenile is over the age of 14 years and earns money, then it can order that
the parent or juvenile pay a fine.
vi. Release him on probation of good conduct under the care of the parent or
guardian when the juvenile signs an undertaking to maintain good conduct or
executing a bond not exceeding 3 years.
vii. Release the juvenile and put him in the care of any fit institution for any period
not exceeding 3 years.
viii. The JJB on satisfaction of the nature and circumstances of the offence may
reduce the period of stay in such fit institution and record the reasons for the
same, in writing.
ix. All orders shall be passed only after the JJB goes through the investigation report
prepared by the Probation Officer or any other voluntary organisation appointed
for the same.
x. In addition to sending the child to a fit institution or under the care of the parent
or guardian, a Probation Officer shall be appointed for supervision.

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xi. The terms and conditions of the sentence may be varied on basis of the report of
the Probation Officer.
xii. An order may be made to send the juvenile to a special home for a period not
exceeding 3 years.
xiii. The terms of the bond must be explained to the Probation Officer, juvenile, surety
and to the parent or guardian.
2. Section 16 is a special provision overriding all other provisions which states that the
JJB is not empowered to sentence a juvenile to death or imprisonment for life or
commit him to a prison in default of payment of fine or default in furnishing security.
3. Section 17 is a special overriding provision that states that no order can be passed
against the juvenile under Chapter 8 of the CrPC which deals with good behaviour
and keeping peace.
4. Section 18 further states that no joint proceedings of juveniles and a person who is not
a juvenile shall be instituted in a criminal court. The juvenile cannot be charged along
with such other person. The Board may thus order that separate trials may be
conducted.
5. Section 19 states that no stigma or disqualification can be attached to a juvenile if
found guilty for an offence.
6. Further, Rule 58 the record and proceeding against a juvenile shall be destroyed
within 5 years.
7. In the case of Lallan Singh v. UP, the SC stated that when trial of the accused is
pending (before the enforcement of the new Act) then the trial shall be concluded in
accordance with the provisions of the old Act. However, if it found that the person is a
juvenile then there is no sentence passed by the trial Court. The Board shall then take
over the case.
8. Section 22 states that no action can be initiated nor can any proceedings be instituted
against a juvenile if a juvenile escapes from the observation home.
9. If such juvenile escapes more than once, then new papers shall be produced before the
JJB or CWC which may pass an appropriate order.
10. However, there shall be no enhancement of punishment or increase in his term at the
observation home.

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CHILD IN NEED OF CARE AND PROTECTION
1. Section 2 (d) states that a "child in need of care and protection" means a child:
i. who is found without any home or settled place or abode and without any
ostensible means of subsistence,
ii. who resides with a person (whether a guardian of the child or not) and such
person-
a. has threatened to kill or injure the child and there is a reasonable likelihood of
the threat being carried out, or
b. has killed, abused or neglected some other child or children and there is a
reasonable likelihood of the child in question being killed, abused or neglected
by that person,
iii. who is mentally or physically challenged or ill children or children suffering
from terminal diseases or incurable diseases having no one to support or look
after,
iv. who has a parent or guardian and such parent or guardian is unfit or
incapacitated to exercise control over the child,
v. who does not have parent and no one is willing to take care of or whose
parents have abandoned him or who is missing and run away child and whose
parents cannot be found after reasonable inquiry,
vi. who is being or is likely to be grossly abused, tortured or exploited for the
purpose of sexual abuse or illegal acts,
vii. who is found vulnerable and is likely to be inducted into drug abuse or
trafficking,
viii. who is being or is likely to be abused for unconscionable gains,
ix. who is victim of any armed conflict, civil commotion or natural calamity
2. Sangeeta Punekar v. Maharashtra
FACTS: In an institution, Prem Sagar, many young girls were sexually abused and even
raped by a reverend named Alfred. Other also apprehended facing the same problems and
a case was filed by a social worker of FACSE (Forum against Child Sexual Exploitation).
HELD: that such children be given protection. Further, the JJB was directed to be set up
within 8 weeks of the judgment and the rules were to be framed and brought into force within
12 weeks.

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CHILD WELFARE COMMITTEE
Constitution of the Committee
1. Section 29 of the Act gives the Constitution of the CWC as follows:

i. The State Government may, by notification in Official Gazette, constitute for
every district or group of districts, specified in the notification, one or more
Child
ii. Welfare Committees for exercising the powers and discharge the duties
conferred on such Committees in relation to child in need of care and
protection under this Act.
iii. The Committee shall consist of a Chairperson and four other members as the
State
iv. Government may think fit to appoint, of whom at least one shall be a woman
and another, an expert on matters concerning children.
v. The qualifications of the Chairperson and the members, and the tenure for
which they may be appointed shall be such as may be prescribed.
vi. The appointment of any member of the Committee may be terminated, after
holding inquiry, by the State Government, if-
a. he has been found guilty of misuse of power vested under this Act;
b. he has been convicted of an offence involving moral turpitude, and
such conviction has not been reversed or he has not been granted full
pardon in respect of such offence;
c. he fails to attend the proceedings of the Committee for consecutive 3
months without any valid reason or he fails to attend less than 3/4th of
the sittings in a year.
vii. The Committee shall function as a Bench of Magistrates and shall have the
powers conferred by the Code on a Metropolitan Magistrate or a JMFC.
2. Any final order passed by the CWC shall be ratified by all the members for final
disposal of the matter.
3. All decisions shall be made by way of majority. In case of a tie, then the decision of
the Chairperson shall prevail.
4. Section 31 enlists the powers of the CWC as follows:

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i. The Committee shall have the final authority to dispose of cases for the care,
protection, treatment, development and rehabilitation of the children as well as
to provide for their basic needs and protection of human rights.
ii. Where a Committee has been constituted for any area, such Committee shall,
notwithstanding anything contained in any other law, have the power to deal
exclusively with all proceedings under this Act relating to children in need of
care and protection.
5. Section 32 along with Rule 8 relates to production of the child in need of care and
protection before the CWC.
i. Any child in need of care and protection may be produced before the
Committee by one of the following persons:
a. any police officer or special juvenile police unit or a designated police
officer;
b. any public servant;
c. childline, a registered voluntary organisation or by such other
voluntary organisation or an agency as may be recognised by the State
Government;
d. any social worker or a public spirited citizen authorised by the State
Government;
e. by the child himself.
ii. A report along with the child shall be produced before the CWC.
iii. If the child is below the age of 2 years then within 48 hours and if 2 years and
above the child shall be produced within 24 hours excluding the time of the
journey.
iv. If the child himself reports of some abuse an inquiry shall be conducted and
the same shall be reported to a Sessions Judge for further action.
v. The CWC may call for medical reports to determine the age of the child.
vi. Birth certificate or school records may also be used.
vii. The SC has held for such purposes children plus 2 or minus 2 also shall be
considered. For example, if a child appears to be 20, but appears before the
CWC may also be considered.

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6. Section 33 deals with inquiry

i. It states that the Committee or any police officer or special juvenile police unit
or the designated police officer shall hold an inquiry which shall be completed
within 4 months.
ii. After the completion of the inquiry if the Committee is of the opinion that the
said child has no family or ostensible support, it may allow the child to remain
in the children's home or shelter home till suitable rehabilitation is found for
him or till he attains the age of eighteen years.
iii. Further in the case of Sunil v. State, the court clarified that the court cannot
leave the determination of the age of the juvenile entirely on the evidence
produced by the juvenile, but must make an inquiry suo moto.
iv. In the case of Satbir Singh v. State, the SC reiterated that for the purposes of
determination of a person being a juvenile, the date of birth as recorded in the
school register shall be taken into consideration.
v. In the case of Sheela Barse v. UOI, the SC stated that there is controversy
regarding the point that juveniles should be kept in observation homes and not
in jail pending their inquiry irrespective of the fact that the juvenile has
crossed the age limit.
vi. In the case of Prabhunath v. Bihar, the SC stated that in case of a trial of a
juvenile, the trial court shall suo moto hold an inquiry as to determine the
exact age of the juvenile and eliminate any kind of dispute regarding the
eligibility of the person to be tried under the Act.
HOMES AND INSTITUTIONS
1. Children’s Homes (Section 34)

i. Section 2 (e) states that children’s home means an institution established by a
State Government or by voluntary organisation and certified by that
Government under section 34
ii. The State Government may establish and maintain either by itself or in
association with voluntary organisations, children's homes, in every district or
group of districts, , for the reception of child in need of care and protection
a. during the pendency of any inquiry and

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b. subsequently for their care, treatment, education, training, development

and rehabilitation.
iii. Rule 16 furtehr states that the children’s home shall be according to age groups
of : 0 to 6 years; 7 to 12 years and 12 to 18 years.
2. Special Homes (Section 9)

i. Section 2 (v) states that "special home" means an institution established by a
State Government or by a voluntary organisation and certified by that
Government under section 9.
ii. Any State Government may establish and maintain either by itself or under an
agreement with voluntary organisations, special homes in every district or a
group of districts, as may be required for reception and rehabilitation of
juvenile in conflict with law under this Act.
iii. Where the State Government is of opinion that any institution other than a
home established or maintained, it may certify such institution as a special
home for the purposes of this Act.
iv. Rule 15B further states that there must be age groups formed for special
homes as follows: 8 to 12 years, 13 to 16 years and 17 to 18 years.
3. Fit Institutions
i. Section 2 (h) states that a fit institution is one means a governmental or a
registered non-governmental organisation or a voluntary organisation
prepared to own the responsibility of a child and such organisation is found fit
by the competent authority;
4. Observation Home
i. Section 2(o) states that an "observation home" means a home established by a
State Government or by a voluntary organisation and certified by that State
Government under section 8 as an observation home for the juvenile in
conflict with law.

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ii. Any State Government may establish and maintain observation homes in
every district or a group of districts, as may be required for the temporary
reception of any juvenile in conflict with law during the pendency of any
inquiry regarding them under this Act.
iii. Every juvenile who is not placed under the charge of parent or guardian and is
sent to an observation home shall be initially kept in a reception unit of the
observation home for preliminary inquiries.
iv. Rule 15 B states classification for juveniles according to his age group, such as
seven to twelve years, twelve to sixteen years and sixteen to eighteen years,
giving due considerations to physical and mental status is mandatory.
5. Shelter Home/Drop in Centres

i. Section 2 (u) states that "shelter home" means a home or a drop-in-centre set
up under section 37.
ii. It is a temporary arrangement by way of which a child in need of care and
protection is kept before producing them before the CWC.
REHABILITATION AND SOCIAL INTEGRATION
Section 40: Process of rehabilitation and social reintegration.-
1. The rehabilitation and social reintegration of a child shall begin during the stay of the
child in a children's home or special home and the rehabilitation and social
reintegration of children shall be carried out alternatively by (i) adoption, (ii) foster
care, (iii) sponsorship, and (iv) sending the child to an after-care organisation.
Section 41: Adoption.-
1. The primary responsibility for providing care and protection to children shall be that
of his family.
2. Adoption shall be resorted to for the rehabilitation of such children as are orphaned,
abandoned, neglected and abused through institutional and non-institutional methods.
3. SC Guidelines and CARA Rules must be followed.

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4. The State Government shall set up adoption agencies.

5. A child cannot be given for adoption until a court order has been passed (amendment
2006)
6. Courts shall pass an order as to whether a child can be put up for adoption after due
inquire and shall declare the child legally free for adoption.
7. The children's homes or the State Government run institutions for orphans shall be
recognised as adoption agencies both for scrutiny and placement of such children for
adoption.
8. No child shall be offered for adoption-
i. until two members of the Committee declare the child legally free for
placement in the case of abandoned children,
ii. till the two months period for reconsideration by the parent is over in the case
of surrendered children, and
iii. without his consent in the case of a child who can understand and express his
consent.
9. The Board may allow a child to be given in adoption-
i. to a single parent, and
ii. to parents to adopt a child of same sex irrespective of the number of living
biological sons or daughters.
10. Rule 78 gives certain guidelines to be followed in adoption. They are:
i. Parents may adopt a child of same sex irrespective of the number of living
biological sons or daughters.
ii. Final orders are passed by the Court of Sessions.
iii. State shall set up voluntary organisations or adoption agencies which may be
recognised by the Government only for the adoption of children.
iv. In case of inter-country adoption CARA Rules need to be followed.
v. The Committee must declare that the child is legally free for adoption and
must be signed by 2 members at least.
vi. Committee must conduct an independent inquiry and receives a report from
the Probation Officer within a period of one month.
vii. Committee shall make a declaration in the newspaper, TV, radio, etc.
regarding the child. One shall be a leading newspaper and another regional
language paper.

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viii. After one month of notification the child shall be legally free for adoption.
Such period runs concurrently with appointing a Probation Officer, case
worker, notification, etc.
ix. If the child is below 2 years the Committee shall give a certificate regarding
the child being legally free within 6 weeks else within 3 months.
x. A child above 7 years cannot be given for adoption unless he consents to the
same if he is capable of understanding the same and expressing consent.
xi. The agencies can call the parents or the guardian for counselling and if not a
document is executed by these persons, which may be submitted to the agency
and finally an application is filed with the court.
xii. 2 month period is given to the birth parents for reconsideration.
xiii. If after 2 months the parents do not reply, the child shall only be given to
foster care and then for adoption.
11. Role of JJB
i. JJB shall conduct an inquiry on receipt of the application.
ii. 2 members shall adjudicate on the matter, one of whom shall be the principle
magistrate.
iii. In case the date of birth is not fixed, the JJB shall set a date which shall be
deemed to be the date of birth for future purposes.
iv. Adoption orders shall be given within 2 months of filing of the application.
v. There shall be a periodic follow up of such children and shall take place within
3 years.
vi. For the first year, there shall be 2 follow ups and for the second year there
shall be one follow up.
Foster care.-
1. The foster care may be used for temporary placement of those infants who are
ultimately to be given for adoption.
2. In foster care, the child may be placed in another family for a short or extended period
of time, depending upon the circumstances where the child's own parent usually visit
regularly and eventually after the rehabilitation, where the children may return to their
own homes.

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3. Rule 79:
i. Such period shall not exceed 4 months if meant for a short term. If meant for a
long term shall not exceed 5 years.
ii. The following conditions must be kept in mind:
a. Whether the family is emotionally stable.
b. Whether adjustment is possible.
c. Whether the family has a sufficient income.
d. Income should not be less than Rs.5000
e. Whther the family is willing to take the child for regular medical check
ups.
f. Area in which the family resides
iii. In respect of the foster mother, the following conditions must be kept in mind:
a. Whether she is willing to take training and orientation programs
b. She is physically, mentally and emotionally stable
c. Willing to follow rules
d. Must have some experience in child care.
iv. There shall be regular visits by the Probation Officer or any other officer
appointed in this regard.
Sponsorship
1. Section 43 states that programs will be provided in order to support family, children’s
homes, special homes and to meet certain expenses such as medical, nutritional,
educational and other needs of children with a view to bring equality in the life style
of the child.
2. There are 3 types of sponsorships: individual, group and community.
3. Rule 80 further states that a sponsorship account shall be kept and maintained in
respect of the receipts and payments made of the sponsorship.

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After care institutions
1. These are set up to help those above the age of 18 years to live an honest, industrious
and useful life.
2. A juvenile who is of the age of 17 years and who has not completed 18 years shall be
allowed to stay in such organisations.
3. They may stay in such institutions till the age of 21 years.
4. Rule 18 relates to formation of peer groups.
5. There is one leader of such peer groups who help those children find jobs suitable to
their age.
6. This leader may be a Probation Officer or an ex-member of the organisation.
7. The Probation Officer shall then give a report regarding what help was afforded to the
juveniles to reintegrate him into society. Such report shall be given to the head of the
organisation.

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CASE LAWS FOR ANALYSIS
1) A.N. Roy, Comissioner Of Police & Ors. v. Suresh Sham Singh
RELATED PROVISION: Section 20 of CrPC – Executive Magistrate

FACTS:
After the enactment of the Immoral Traffic (Prevention) Act, 1956, the Maharashtra
Government in order to curtain the increasing number of cases of trafficking of minor
girls and women in the city of Bombay, through a Notification, conferred the powers
District Magistrate within the metropolitan area of Brihan Bombay upon Commission of
Police of Bombay under Section 20 (1), (2) and (5) of the Code for the purposes of
Sections 18 and 20 of the Act. This Notification was challenged in the High Court of
Bombay, wherein it was quashed and thus an appeal was made before the Supreme Court.
ISSUE:
Whether under sub-sections (1), (2) and (5) of Section 20, Cr. P.C., State Government has
power to appoint Commissioner of Police in a metropolitan area as Executive
Magistrate and further appoint him as Additional District Magistrate to have powers of
District Magistrate for purposes of Sections 18 and 20 of Immoral Traffic (Prevention)
Act?
HELD:
The Court went on to read Section 20 of the Code and held that the State Government was
correct in making the appointment in the current case. The Court held that the State
Government has power to Executive magistrates as many persons as it thinks fit, who can
be appointed as Additional District Magistrate and such Magistrate shall have the powers
of a District Magistrate under the Code or under any other law for the time being in force
as may be directed by the State Government.
Thus, the State Government is not precluded from appointing the Commissioner of Police
in a metropolitan area as an Executive Magistrate and once appointed as Executive
Magistrate, he can be appointed as an Additional District Magistrate, who shall have the
powers of the District Magistrate for the purposes of Sections 18 and 20 of the Act.
Further, Section 20 (5) states that nothing in this section shall preclude the State
Government from conferring under any law for the time being in force, on Commissioner
of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan
area. Thus, the Court upheld the notification and held that the Commissioner of Police
could be appointed as District Magistrate for the purposes of the Act under Section 20 of
the Code.

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2) Madhu Limaye v. Sub-Divisional magistrate
RELATED PROVISION: Constitutionality of Section 144

FACTS:
Writ Petition filed before Supreme Court to look into the constitutionality of Section 144
and Chapter VIII of the Cr. PC which was looked into by a Constitutional Bench.
ISSUES:
1. Whether powers conferred to Magistrate under Section 144 are constitutionally valid?
2. Whether Chapter VIII of the Cr. PC is constitutionally valid?
HELD:
The Court held that Section 144 only confers powers to issue Orders only in urgent cases
of nuisance or apprehended danger. Such Orders are to be made by specified classes of
Magistrate on existence of sufficient ground for proceeding under Section and where
immediate prevention or speedy remedy is desirable. The impugned provision is
directed against those who attempt to prevent exercise of legal rights by others or imperil
public safety and health. The nexus of having Section 144 is urgency of situation, its
efficacy in likelihood of being able to prevent some harmful occurrences. For an order to
be passed under Section 144, Emergency must be sudden and consequences sufficiently
grave. The Court held that the power under Section 144 are to be used in judicial
manner. Sufficient safeguards should be available to person affected by Order. According
to the Court, the Provision itself imposes reasonable restrictions. The Court held that
Section 144 is not unconstitutional if properly applied and the fact that it may be
abused no ground for striking it down. Further on the question of Constitutional
validity of Chapter VIII, the Court held that the aim of the Chapter is prevention of crimes
and disturbance of public tranquility and breach of peace. The Court held that the
provisions were essentially conceived in interest of public order and in interest of general
public and were not contrary to Article 19 (1) (a), (b), (c) and (d) and are thus
Constitutionally valid.
3) M. Krishnamurthy v Sub-divisional magistrate
RELATED PROVISION: Scope of judicial review of orders passed by Executive Magistrate

underSection 107 read with Section 111 of the CrPC.
FACTS:
In this case, two groups "A" party and "B" party, lodged complaints against each other
before the Inspector of Police, Gandhikuppam Police Station. According to the members
of "A" party, the land measuring 1.38 acres belongs to them and the members of "B"
party are contending that the said land belongs to Bharathamatha Temple and were
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asserting their right to hold the Mahabaratham festival. The police, apprehending a
breach of peace, registered an FIR and forwarded a report to the Executive Magistrate-
cum-Revenue Divisional Officer for initiating proceedings u/s 107 CrPC. Based on the
report submitted by the police, the Executive Magistrate-cum-Revenue Divisional Officer
passed an order u/s 111 CrPC. calling upon the members of "A" party to show cause,
either in person or through an Advocate, as to why they should not be directed to give a
bond for Rs.10,000/- for a period of six months. Challenging the said order, the members
of "A" party, approached the High Court.
ISSUES:
1. Is a previous incident a sine qua non for initiating Section 107 of the CrPC proceedings?
2. Can proceedings under Section 107 of the CrPC be initiated even before an
incident that is likely to disturb the peace or public tranquility takes place?
3. Should a show-cause order issued under Section 107 of the CrPC reflect that the
Magistrate has assessed the truth of the information and the need for taking action?
4. Can a show cause order under Section 107 of the CrPC be per se subjected to judicial
review?
HELD
The Court held that a show cause order under Section 107 of the CrPC can be subjected to
judicial review under Section 482 of the CrPC or Article 226 of the Constitution of India
if the order does not satisfy the minimum requirements of Section 111 or that the same has
been passed by a person who is not an Executive Magistrate and not otherwise. The High
Court may intervene only and only if the order does not contain the substance of the
information received, the amount of the bond to be executed, the term for which it is to
be in force, and the number, character and class of sureties. The Court explained that
Judicial review of the order passed u/s. 111 of the CrPC is very limited, as the order u/s.
111 merely mandates the Executive Magistrate to give the substance of information that
had led him to form an opinion to initiate proceedings u/s. 107 of the CrPC. This Section
also does not contemplate that the Magistrate should record his opinion or give reasons for
initiating proceedings. This is so because, Section 107 r/w 111 is not the be all and end all
of the proceedings and is merely a preliminary step in the proceedings.
4) Madhu Limaye vs. The State of Maharashtra
RELATED PROVISION: Powers of High

Court
FACTS:
In a press conference held at New Delhi the appellant had made certain statements and
handed over a "press hand-out" containing allegedly some defamatory statements
concerning Shri A. R. Antulay, the then Law Minister of the Government of Maharashtra.
The said statements were published in various newspapers. The State Government
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decided to prosecute the appellant for an offence under Section 500 of the Indian Penal
Code as it was of the view that the law minister was defamed in respect of his conduct
in the discharge of his public functions.
Sanction in accordance with Section 199(4)(a) , a complaint was filed in the Court Of the
Sessions Judge, Greater Bombay. Shri Madhu Limaye, the appellant, filed an application
to dismiss the complaint on the ground that the Court had no jurisdiction to entertain the
complaint. The stand taken on behalf of the appellant was that allegations were made
against Shri Antulay in relation to what he had done in his personal capacity and not in his
capacity of discharging his functions as a Minister. The Sessions Judge rejected all these
contentions and framed a charge against the appellant under Section 500 of the Penal
Code. The appellant, challenged order of the Sessions Judge in revision filed by him in
the High Court. The High Court without entering into the merits of any of the
contentions raised by the appellant, it upheld the preliminary objection as to the
maintainability of the revision application. Hence this appeal was filed in the Supreme
Court.
ISSUES:
Whether the High Court had power to hear the petition?
HELD:
The Supreme Court held that High Court did not consider petition on merit. According to
the Court, this instant case squarely covered by Section 482 where High Court competent
to exercise its inherent powers. High Court is competent to proceed under Section 398 and
may invoke its inherent jurisdiction and so Supreme Court remitted case back to High
Court to dispose petition on merit in accordance with law.
5) Medha Patkar v State of M.P - in relation to EXECUTIVE MAGISTRATE
This is a Public Interest Litigation registered pursuant to a letter dated 26.7.2007 from District Jail,
Indore, written by the petitioner on behalf of the people affected by the Sardar Sarovar Project
who, while agitating from their demands for rehabilitation were arrested and detained in the
Badwani and Indore Jails. Alleged that 26 women agitators and 1 child of seven years of age
were brought from police custody of Badwani and about 200 men agitators and 10 children were
also arrested along with them using immense police force. further stated that they were all
arrested at around 6.00 p.m. from the place of their agitation called Jamin Hak Satyagrah for
giving land to adiwasis, farmers, fishermen, labourers as per the Narmada Water Dispute Tribunal
(NWDT) award, the policy of the State Government of Madhya Pradesh and the orders passed by
the Supreme Court. alleged that all the agitators were forcibly removed from the place of orders
passed by the Supreme Court. alleged that all the agitators were forcibly removed from the place
of agitation and women and children were badly beaten up by the Police and some also received
wounds and that the banners, tents and other documents of the agitators were destroyed by the
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Police.
RULING AND ANALYSIS

Petitioner and other agitators were exercising their fundamental rights to freedom of
speech and expression and to assemble peaceably and without arms guaranteed under
Articles 19(1)(a) and 19(1)(b) of the Constitution, when they had assembled on the road
and were shouting slogans demanding land for land and demanding other rehabilitation
measures and there was nothing in their conduct to show that they had any design to
commit a cognizable offence the commission of which had to be prevented by their arrest
by the Police under Section 151 Cr.P.C. , and yet they were forcibly dragged by the Police
and put in the van.
Find that although the petitioner and other agitators had done nothing to give rise to even
an apprehension that they will disturb the public tranquillity, public peace or public order
and yet the SDM, Badwani insisted upon the petitioner and other agitators to execute
personal bonds under Section 107 Cr.P.C. and on refusal on the part of some of the male
and female agitators to furnish such personal bonds under Section 107
Cr.P.C., the SDM, Badwani, sent the male agitators to the Jail at Badwani and the female
agitators to the Jail at Indore.
Petitioners had done nothing to give rise to even an apprehension that they will disturb the
public tranquility, public peace or public order and the detention of the petitioner and other
agitators in Badwani and Indore Jails on refusal on the part of the petitioner and other
agitators to execute such bond during is wholly without the authority of law and was in
violation of their fundamental right guaranteed under Article 21 of the Constitution.
It was ruled that this section, with respect to “EXECUTIVE MAGISTRATE aimed to be
preventive over being punitive, confers the Executive Magistrates with enormous powers
in order to take prompt action in case of an emergency, but in a way as strictly prescribed
by law. This is equally important so as not to barge in on the liberty of the person who has
been accused.
6) Joginder Kumar vs. State of U.P. and Ors.

RELATED PROVISION: Constitutional scope and enforcement of fundamental
rights during an arrest.
FACTS:
The Senior Superintendent of police, Ghaziabad, Respondent No. 4 called the Petitioner
(an advocate) in his office for making enquiries in some cases. When the brother of
the Petitioner made enquiries about the Petitioner, he was told that the Petitioner will be
set free in the evening after making some enquiries in connection with a case.The brother
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of the Petitioner being apprehensive of the intentions of Respondent No. 4, sent a

telegram to the Chief Minister of U.P. apprehending his brother's implication in some
criminal case and also further apprehending the Petitioner being shot dead in a fake
encounter. It later came to be known that Petitioner is detained in illegal custody of 5th
Respondent SHO, P.S. Mussoria. It was informed that the 5th Respondent was
keeping the Petitioner in detention to make further enquiries in some cases. So
far as Petitioner has not been produced before the concerned Magistrate and the 5th
Respondent directed the relative of the Petitioner to approach the S.S.P. Ghaziabad for
release of the Petitioner. When the brother of Petitioner along with relatives went to P.S.
Mussorie enquired about the well-being of his brother, it was found that the Petitioner
had been taken to some undisclosed destination. The petitioners thus approached the
Supreme court under Art. 32 for the Petitioner’s release.
ISSUES
1. Whether the arrest of the petitioner was legally valid?
2. Whether some safeguards are to be followed when making an arrest?
HELD
The Court held that no Arrest can be made in a routine manner on a mere allegation of commission
of an offence against a person. Arrest cannot be made without a reasonable satisfaction reached
after some investigation is made as to the genuineness of the complaint merely on suspicion
of complicity in an offence a person is not liable to be arrested Constitutional rights of the person
have to be protected.
No arrest can be made just because it is lawful for the Police Officer to do so. The
existence of the power to arrest is one thing but the exercise of the power has to be
justified. No arrest should be made without a reasonable satisfaction reached after some
investigation as to the genuineness of a complaint and a reasonable belief both as to the
person's complicity and evenso as to the need to effect arrest.
A person is not liable to arrest merely on the suspicion of complicity in an offence.

There must be some reasonable justification in the opinion of the Officer effecting the
arrest that such arrest is necessary and justified. Except in heinous offences, an arrest
must be avoided if a police officer issues notice to a person to attend the Station House
and not to leave Station without permission.
Further the court looked at Articles 21 and 22 Constitution of India in order to interpret
the rights of a person when being arrested. The Court mentioned that An arrested person
has a right, upon request, to have someone informed and to consult privately with a
lawyer. These rights are inherent under Articles- 21 and 22(1). The Court issued
Directions to effectively enforce these fundamental rights under which when the arrested
person is produced, Magistrate has to satisfy himself that the requirements have been
complied with.

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For effective enforcement of these fundamental rights, we issue the following requirements:
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 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.
4) 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 requirements
shall be followed in all cases of arrest till legal provisions are made in this behalf.
7) Sheela Barse vs. State of Maharashtra

RELATED PROVISION: Case concerning women prisoners and detainees in State of
Maharashtra
FACTS:
This writ petition is based on a letter addressed by Sheela Barse, a journalist, complaining
of custodial violence to women prisoners whilst confined in the police lock up in the city of
Bombay. The letter was written after she interviewed fifteen women prisoners in the
Bombay Central Jail with the permission of the Inspector General of Prisons and five of
them told her that they had been assaulted by the police in the police lock up. Of these
five who complained of having been assaulted by the police, the petitioner particularly
mentioned the cases of two who were allegedly assaulted and tortured whilst they were in
the police lock up.
ISSUES
Whether safeguards have to be placed for protecting the fundamental rights women
prisoners and detainees in State of Maharashtra?
HELD
The Court reiterated right to legal aid to under trial and convicted persons and issued certain
direction for providing fast and efficient legal assistance to prisoners in jail and to provide
protection to women prisoners in lock-ups.
GUIDELINES:

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(i) We would direct that four or five police lock ups should be selected in reasonably good
localities where only female suspects should be kept and they should be guarded by
female constables. Female suspects should not be kept in police lock up in which male
suspects are detained.
(ii) We would further direct that interrogation of females should be carried out only in
the presence of female police officers/constables.
(iii) Whenever a person is arrested by the police without warrant, he must be

immediately informed of the grounds of his arrest and in case of every arrest it must
immediately be made known to the arrested person that he is entitled to apply for bail.
Hindi and English and printed copies of the pamphlet in all the three languages shall be
affixed in each cell in every police lock up and shall be read out to the arrested person as
he is brought to the police station.
(iv) We would also direct that whenever a person is arrested by the police and taken to
the police lock up, the police will immediately give an intimation of the fact of such
arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take
immediate steps for the purpose of providing legal assistance to the arrested person at State
cost provided he is willing to accept such legal assistance.
(v) a City Sessions Judge, to be nominated by the principal Judge of the City Civil Court,
preferably a lady Judge, if there is one, shall make surprise visits to police lock ups in the
city periodically with a view to providing the arrested persons an opportunity to air their
grievances and ascertaining what are the conditions in the police lock ups and whether the
requisite facilities are being provided and the provisions of law are being observed and the
directions given by us are being carried out. If it is found as a result of inspection that there
are any lapses on the part of the police authorities, the City Sessions Judge shall bring them
to the notice of the Commissioner of Police
(vi) We would direct that as soon as a person is arrested, the police must immediately
obtain from him the name of any relative or friend whom he would like to be informed
about his arrest and the police should get in touch with such relative or friend and
inform him aboutthe arrest; and lastly.
(vii) We would direct that the magistrate before whom an arrested person is produced
shall enquire from the arrested person whether he has any complaint of torture or
mal-treatment in police custody and inform him that he has right under Section 54 of
the CrPC 1973 to be medically examined.
8) State of Punjab v Ajab Singh AIR 1953 S. C. 10

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This appeal arises out of a habeas corpus petition led by one Ajaib Singh in the High
Court of Punjab for the production and release of one Musammat Sardaran alias Mukhtiar
Kaur, a girl of about 12 years of age. On the report made by one Major Babu Singh,
Officer Commanding No. 2 Field Company, S. M. Faridkot, in his letter, that the petitioner
Ajaib Singh had three abducted persons in his possession, the recovery police of
Ferozepore, on June 22, 1951, raided his house in village Shersingwalla and took the girl
Musammat Sardaran into custody and delivered her to the custody of the Officer in charge
of the Muslim Transit Camp at Ferozepore from whence she was later transferred to and
lodged in the Recovered Muslim Women's Camp in Jullundur City. Petitioner filed the
habeas corpus petition and obtained an interim order that the girl should not be removed
from Jullundur until the disposal of the petition.
ISSUES
1. Is Central ultra vires the Constitution because its provisions with regard to the
detention in refugee camps of persons living in India violate the rights conferred upon
Indian citizens under article 19 of the Constitution?
2. Is this Act ultra vires the Constitution because in terms it violates the provisions of
article 22 of the Constitution?
Held: The Abducted Persons (Recovery and Restoration) Act (Act LXV of 1949) does
not infringe art. 14, art. 16, art. 19 (1) (d), (e) and (g), art. 21 or art. 22 of the Constitution
and is not unconstitutional on the ground that it, contravenes any of these provisions.
The physical restraint Put upon an abducted person in the process of recovering and,
taking that person into custody without any allegation or accusation of any actual or
suspected or apprehended commission by that person of any offence of a criminal or
quasi-criminal nature or of any act prejudicial to the State or the public interest, and
delivery of that person to the custody of the officer in charge of the nearest camp under
s. 4 of the Abducted Persons (Recovery and Restoration) Act (LXV of 1949) is not
arrest and detention within the meaning of art. 22 (1) and (2) of the Constitution.
The said Act does not therefore infringe the fundamental right guaranteed by art. 22 of the
Constitution.
255 The fundamental right conferred by art. 22 gives protection, against such arrests as
are effected otherwise than under a warrant issued by a Court on the allegation or
accusation that the arrested person has, or is suspected to have,. committed, or is about or
likely to commit, an act of a criminal or quasi- criminal nature or some activity
prejudicial to the public or the State interest. There is indication in the language of art.
22 (1) and (2) that it was designed to give protection against the act of the executive or
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other non-judicial authority. The Blitz Case (Petition No. 75 of 1952) explained. Muslim
abducted persons constitute a well-defined class for the purpose of legislation and the fact
that the Act is extended only to the several States mentioned in s. 1 (2) of the Act does not
make any difference, for a classification may well be made on a geographical basis. The
Act does not therefore contravene art. 14 of the Constitution. If the language of an article
is plain and unambiguous and admits of only one meaning, then the duty of the Court is to
adopt that meaning irrespective of the inconvenience that such a construction may
produce. If, however, two constructions are possible then the Court must adopt that which
will ensure smooth and harmonious working of the Constitution and, eschew, the other
which will lead to absurdity or give rise to practical inconvenience or make well
established provisions of existing law nugatory.
9) D.K. Basu vs. State of West Bengal

RELATED PROVISION: Vicarious liability of State in case of infringement of
Fundamental Right by Public Servant
Ratio Decidendi:
"Where right is one guaranteed by State, it is against the State that the remedy
must be sought if there has been a failure to discharge the constitutional
obligation imposed."
FACTS:
The Executive Chairman, Legal Aid Services, West Bengal, addressed a letter to the
Chief Justice of India drawing his attention to certain news items published regarding
deaths in police lock-ups and custody.
The Executive Chairman submitted that it was imperative to examine the issue in depth
and to develop "custody jurisprudence" and formulate modalities for awarding
compensation to the victim and/or family members of the victim for atrocities and death
caused in police custody and to provide for accountability of the officers concerned.
It was also stated in the letter that efforts are often made to hush up the matter of lock-up
deaths and thus the crime goes unpunished and "flourishes".
It was requested that the letter along with the news items be treated as a writ petition
under "public interest litigation" category. Considering the importance of the issue raised
in the letter and being concerned by frequent complaints regarding custodial violence and
deaths in police lock up, the letter was treated as a writ petition and notice was issued to
the respondents.

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HELD
The Court held that the claim of citizen was based on principle of strict liability to
which defense of sovereign immunity was not available. Thus, citizen could
receive amount of compensation
from the State, which had the right to be indemnified by wrong doer. In assessment of
compensation, emphasis had to be on compensatory and not on punitive elements.
According to the Court, monetary or pecuniary compensation was appropriate and indeed
effective in certain cases for redressal of established infringement of fundamental right to
life of citizen by public servants and the State was to be held vicariously liable for their
acts. Thus, said amount of compensation could be adjusted against the amount awarded to
claimant by way of damages in civil suit.
10)Birendra Kumar Rai v union of India

The petitioner has challenged his detention under Section 3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.The petitioner's
contention was that since the impugned order was passed by the Joint Secretary of the
Central Government and not by the Central Government and under Section 5(a) the place
of detention could only be specified by the "appropriate Government" viz. the Central
Government and not by its officer thus order by the Joint Secretary is illegal and void.
The detention of the petitioner was not under any order sentencing him for a long period of
time nor he was under detention in the case of crime under 1985 Act. The satisfaction
recorded by the detaining authority is a subjective satisfaction and this court would not sit
in judgment over the satisfaction of the detaining authority to come to its own conclusion.
It was held that arrest need not be by handcuffing the person, and it can also be complete
by spoken words if the person submit to custody.
The detaining authority having considered all the documents earlier also considered the
fact about detenu having moved the bail application. Thus, this argument also fails. For
the findings recorded by us earlier we do not find any sustainable ground has been raised
by the petitioner to hold the detention order to be illegal. Accordingly, the writ petition
fails and is hereby dismissed.
11) G. Kavitha v. Union of India

RELATED PROVISION: Constitutional Validity of Section 64 of CrPC

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FACTS:
Miss. G. Kavitha, a practicing advocate is the Petitioner who is involved in social

activities especially in the upliftment of the women and poor sections of the society. Her
prayer is for declaration and direction that Section 64 of the CrPC. is unconstitutional.
ISSUES
Whether Section 64 of the CrPC is unconstitutional on being discriminatory against women
HELD
In the present case, the High Court held that it was contended that provision under Section 64 of
CrPC was against females and It was found that provision omits the word "female". The
Court on reading Section 64 of CrPC held that the provision says that female should not be
allowed to
receive summons in absence of summoned person then provision is directed against female
but in provision says only an adult male member and it means it has omitted the word
"female".
But there was no specific bar, therefore the same could be considered by the legislature to
include the word "female". If a mother and son alone were residing in the house and if the
son was out of station for any reason, if summons in a criminal case was sought to be
served on the son, then denying the opportunity of receiving summons by the mother may
create a problem.
When there was no such restriction for mothers to receive summons in civil cases, the
Court did not understand the reason for denial of the same right in a criminal case. There
should be uniformity, equality in treating both. But the Court went on to say that An
enactment of legislation could not be struck down merely by saying that it was arbitrary
testing for a particular decision of legislature incorporating provision was arbitrary,
existing circumstances at time of taking decision were to be examined. Therefore, the
Court left this decision to the wisdom of the legislature at national level and the Petition
was dismissed.
12) State through C.B.I. vs. Dawood Ibrahim Kaskar and Ors
RELATED PROVISION: Application of Section 73 of CrPC
FACTS:
On March 12, 1993 a series of bomb explosions took place in and around the city of Bombay which
resulted in the death of 237 persons, injuries to 713 persons and damage to properties worth Rs, 27
crores (approximately). Over the explosions 27 criminal cases were registered and on completion of
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investigation a composite charge-sheet was forwarded to the Designated Court, Greater Bombay for
commission of various offences punishable under the Indian Penal Code, TADA Act, Arms Act,
Explosives Substances Act, etc.
Designated Court took cognizance and the case registered thereon was numbered as B.B.C.
(Bomb Blast Case) No. 1 of 1993.
The Government of India, with the consent of the Government of Maharashtra, issued a
notification entrusting further investigation in the above cases to Delhi (CBI). After
hearing the parties, the Designated Court, by its order, rejected the applications. The above
order is under challenge in these appeals preferred at the instance of CBI to the High
Court, where the Designated Court’s the judgement was upheld after which the CBI
approached the Supreme Court.
ISSUE
When and under what circumstances a Court can invoke the provisions of Section 73
HELD
The Court found that Section 73 of the Code is of general application and that in
course of the investigation a Court can issue a warrant in exercise of power
thereunder to apprehend, inter alia, a person who is accused of a non-bailable
offence and is evading arrest. When a Magistrate, on
the prayer of the Investigating Agency holds a test identification parade, records the
confession of an accused or the statement of a witness, or takes or witnesses the taking of
specimen handwritings etc., Magistrate does not exercise judicial discretion like while
dealing with an accused of a non bailable offence who is produced before him pursuant to
a warrant of arrest issued under Section 73.
On such production, the Court may either release him on bail under Section 439
or authorize his detention in custody (either police or judicial) under Section
167 of the Code. Whether the Magistrate, on being moved by the Investigating
Agency, will entertain its prayer for police custody will be at his sole discretion
which has to be judicially exercised in accordance with Section 167(3) of the
Code. Since warrant is and can be issued for appearance before the Court only
and not before the police and since authorization for detention in police custody
is neither to be given as a matter of course nor on the mere asking of the police,
but only after exercise of judicial discretion based on materials placed before
him, Mr. Desai was not absolutely right in his submission that a warrant of
arrest under Section 73 of the Code could be issued by the Courts solely for the
production of the accused before the police in aid of investigation.
On the basis of these conclusions the Supreme Court, set aside the impugned order and
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directed the Designated Court to dispose of the three miscellaneous applications filed by
C.B.I. in accordance with law and in the light of the observations made herein before.
13) Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Ors.

RELATED PROVISION: Powers of Magistrates when issuing warrants
FACTS:
Mr. Prem Harchandrai filed a complaint against the Appellant, a practicing Advocate,
under Section 324 of the Indian Penal Code, 1860 in relation to some incident alleged to
have taken place in the 'Radio Club' at Mumbai, considered to be a club for the elite.
When at a preliminary stage, finding the Appellant to be absent, the Court issued a non-
bailable warrant against him returnable on 31st October, 2002. However, on Appellant's
appearing before the Court, the warrant was cancelled.
The complainant approached the Colaba Police Station and insisted on the arrest of the
Appellant in pursuance of the said non-bailable warrant. Thereupon, Respondent No. 2,
posted as an Inspector of Police at the Colaba Police Station, directed a constable to
accompany the complainant, and execute the warrant. The Appellant informed the
constable that the said warrant had already been cancelled. However, he could not produce
any documentary evidence relating to cancellation of warrant; the Appellant was arrested
before a public gathering which had assembled at the Radio Club, in connection with the
Independence Day celebrations.
He was produced before the Magistrate. The Magistrate directed the release of the
Appellant as Appellant obtained the necessary confirmation about cancellation of the
warrant on the next day and produced the same before Respondent No. 2 on the same
day.
Alleging malafides and humiliation at the hands in collusion with the complainant, the
Appellant approached the High Court, praying for suitable disciplinary action against
Respondent No. 2; adequate compensation; damages and costs by the said Respondent
from his own pocket.
ISSUE
Whether a Non-bailable warrant can be issued just for non-attendance?
HELD
The Supreme Court upheld the judgement of the High Court and found that there
was no more compensation needed. The Court held that the power to issue warrants
under Section 70 and 71 of CrPC has to be exercised judicially and not arbitrarily after
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looking at facts and circumstances of case by the Magistrate and issuing of non-bailable
warrant was arbitrary.
As for the defamation caused, the Court held that it is true that the Appellant not only
suffered humiliation in the public gathering, and remained in judicial custody for some
time But since he practicing Advocate himself, he was fully conversant with the court
procedure and, therefore, should have procured a copy of memo/order, whereby the non-
bailable warrant was cancelled by the court and so was at fault himself and so no further
award was given to the Appellant.
Further the Court issued certain guidelines which are to be adopted by Courts
where non-bailable warrants issued:
(a) HighCourt ensures subordinate Courts use printed and machine numbered Form
No. 2 for issuing warrant of arrest and each such form is duly accounted for;
Before authenticating, the court must ensure that complete particulars of the case are
(b)
mentioned on the warrant;
(c)The presiding Judge of the court (or responsible officer specially authorized for the
purpose in case of High Courts) issuing the warrant should put his full and legible
signatures on the process, also ensuring that Court seal bearing complete particulars of the
Court is prominently endorsed thereon;
(d)The Court must ensure that warrant is directed to a particular police officer (or
authority) and, unless intended to be open-ended, it must be returnable whether executed
or unexecuted, on or before the date specified therein;
(e)Every Court must maintain a register (in the format given below), in which each
warrant of arrest issued must be entered chronologically and the serial number of such
entry reflected on the top right hand of the process;
(f)No. warrant of arrest shall be issued without being entered in the register mentioned
above and the concerned court shall periodically check/monitor the same to confirm that
every such process is always returned to the court with due report and placed on the
record of the concerned case;
(g)A register similar to the one in Clause (e) supra shall be maintained at the concerned
police station. The Station House Officer of the concerned Police Station shall ensure that
each warrant of arrest issued by the Court, when received is duly entered in the said
register and is formally entrusted to a responsible officer for execution;
(h)Ordinarily, the Courts should not give a long time for return or execution of warrants,
as experience has shown that warrants are prone to misuse if they remain in control of
executing agencies for long;
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(i)On the date fixed for the return of the warrant, the Court must insist upon a compliance
report on the action taken thereon by the Station House Officer of the concerned Police
Station or the Officer In-charge of the concerned agency;
The report on such warrants must be clear, cogent and legible and duly forwarded by a
(j)
superior police officer, so as to facilitate fixing of responsibility in case of misuse;
(k)In the event of warrant for execution beyond jurisdiction of the Court issuing it,
procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously
followed; and
(l)In the event of cancellation of the arrest warrant by the Court, the order cancelling
warrant shall be recorded in the case file and the register maintained. A copy thereof shall
be sent to the concerned authority, requiring the process to be returned unexecuted
forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid
registers. A copy of such order shall also be supplied to the accused.
14)K GOVVIND RAJ Vs SUBIAN
On perusal of the impugned order indicates that the trial Court is on the impression that
after a lapse of two years from the date of attachment, it has no power to consider the
request to lift the attachment which is not legally correct. The spirit of Sections 83, 84 and
85 in CrPC is to procure an absconding accused and to proclaim an offender who is
absconding or concealing himself from criminal prosecution. As a plenary measure, his
property is liable to be attached for defying the warrant issued by the criminal Court. At
the same time, if the person procured on subsequent date or he himself surrendered before
the Court and makes his submission that he was not voluntarily absconded or concealed to
avoid execution of the warrant, then, the Court shall order for lifting the attachment
WHETHER THE MANDATORY TIMING OF 2 YEARS UNDER 83(5) IS

BINDING ON THE ALLEGED ABSOUNDER AND WHETHER S5 OF THE
LIMITATION ACT IS VALID IN THIS CIRCUMSTANCE?
With great respect to the learned Judges who have rendered the above cited judgments,
this Court wish to state while the attachment of the accused property is made pursuant to
a judicial order suggesting the aggrieved party to approach the executive for remedy is
not appropriate. Vesting the property with Government to review a judicial order passed
under Section 83 of the code is alien to Indian legal system. Order passed under Section
83 is subject to Section 84 and 85 of the code. The Courts are bound to consider application
filed under Section 85 (3) on merits, whether notice of proclamation was properly served
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on the party and whether the application filed beyond the two years prescribed under the
statute is explained with reasonable cause. Holding Section 5 of the Limitation Act is not
applicable and to direct the aggrieved person to approach the Government or to file civil
suit for remedy will amount to divesting the power of the Court which has passed the
order of attachment to reconsider it, in view of the accomplishment of the purpose for
which the attachment was ordered. Therefore, this Court holds that the above two
judgments relied by the trial Court are not appropriate to the facts and law governing the
issue in hand.
To some extent, the order of the trial Court is correct that de hors of the outcome of the
criminal proceedings, proclamation for absconding or concealing is an independent cause
of action. At the same time, if reasonable cause shown the attachment made consequent
to the proclamation can be raised. The two years period referred for lifting the attachment
cannot be read literally to say the belated application are not maintainable, even if there is
a justifiable cause for not appearing before the Court or for not seeking relief of raising the
attachment after two years. If the petitioner makes out a justifiable cause for filing the
present application after 12 years of attachment and able to convince the trial Court that
he has not absconded himself wantonly, then, the Court has every right to consider the
application and lift the attachment. Procedure is hand maid of justice. The endeavor of
the Court should be to render justice by appropriate interpretation of statute
15)RAJNESH VS NEHA
FACTS:
The Respondent No. 1-wife left matrimonial home shortly after the birth of the son-
Respondent No. 2. The wife filed an application for interim maintenance under Section
125 Code of Criminal Procedure on behalf of herself and the minor son.
The Family Court vide a detailed Order awarded interim maintenance to the Respondent
No. 1-wife and Respondent No. 2-son. The Appellant-husband challenged the Order of
the Family Court vide Criminal Writ Petition filed before the High Court, Nagpur Bench.
The High Court dismissed the Writ Petition and affirmed the Judgment passed by the
Family Court.
This Supreme Court issued notice to the wife and directed the Appellant husband to file
his Income Tax Returns and Assessment Orders. He was also directed to place a
photocopy of his passport on record. By a further Order, the Appellant-husband was
directed to make payment of the arrears towards interim maintenance to the wife and a
further amount which was due and payable to the wife towards arrears of maintenance, as
per his own admission.
By a subsequent Order, it was recorded that only a part of the arrears had been paid. A
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final opportunity was granted to the Appellant husband to make payment of the balance
amount, failing which, the Court would proceed under the Contempt of Courts Act for
wilful disobedience with the Orders passed by this Court.
In the backdrop of the facts of this case, it was fit to frame guidelines on certain aspects
pertaining to the payment of maintenance in matrimonial matters.
HELD:
(i) The Judgment and order passed by the Family Court, affirmed by the High Court for
payment of interim maintenance to the Respondent No. 1-wife, and Respondent No. 2-
son, was affirmed by this Court. The husband was directed to pay the entire arrears of
maintenance within a period of twelve weeks from the date of this Judgment, and continue
to comply with this Order during the pendency of the proceedings under Section 125 Code
of Criminal Procedure before the Family Court. If the Appellant-husband fails to comply
with the said directions of this Court, it would be open to the Respondents to have the
Order enforced under Section 128 Code of Criminal Procedure, and take recourse to all
other remedies which are available in accordance with law.
To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being
passed in different proceedings, it had become necessary to issue directions in this regard,
so that there was uniformity in the practice followed by the Family Courts/District
Courts/Magistrate Courts throughout the country. It was directed that:
(a). where successive claims for maintenance were made by a party under different
statutes, the Court would consider an adjustment or set-off, of the amount awarded in the
previous proceeding/s, while determining whether any further amount was to be awarded
in the subsequent proceeding.
(b) it was made mandatory for the Applicant to disclose the previous proceeding and the
orders passed therein, in the subsequent proceeding.
(c) if the order passed in the previous proceeding/s requires any modification or variation,
it would be required to be done in the same proceeding.
(ii) The Affidavit of Disclosure of Assets and Liabilities annexed of this judgment, as
may be applicable, shall be filed by both parties in all maintenance proceedings,
including pending proceedings before the concerned Family Court/District
Court/Magistrates Court, as the case may be, throughout the country.
(iii) For determining the quantum of maintenance payable to an applicant, the Court shall
take into account the criteria enumerated in Part B - III of the judgment. These are
1. Careful and just balance between factors
2. Age of parties
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3. Earning capacity
4. Disability
5. Needs of children
(iv) The maintenance in all cases will be awarded from the date of filing the application for
maintenance.
(v) For enforcement/execution of orders of maintenance, it was directed that an order or

decree of maintenance may be enforced under Section 28A of the Hindu Marriage Act,
1956 (sic1955), Section 20(6) of the D.V. Act and Section 128 of Code of Criminal
Procedure, as may be applicable. The order of maintenance may be enforced as a money
decree of a civil court as per the provisions of the Code of Civil Procedure, more
particularly Sections 51, 55, 58, 60 read with Order 21.
16)Dilawar Singh vs State Of Delhi

FACTS:
Complaint was filed by balwant singh – appellant and others apparently tied him up and
stole money from donation box in which he was a priest – 21 delay in filing complaint –
apparently the matter was taken to the police but they failed file fir - magistrate
committed the matter to court of session for dacoity under section 397 IPC – sessions
court condoned the delay and held the appellant to be liable – in appeal HC held that the
appeal was dismissed since pw1 witness was accurate – conviction recorded on pw1
evidence – however, complaint and what was statement of pw1 in court different 0- in one
there was a gun in other there was sword – held that the delay affected the case of the
person as there was no record produced to show that the complaint to the police and that
the ingredients of section 397, 452 and 392 was not established
HELD:
Challenge in this appeal is to the judgment of the learned Single Judge, Delhi High Court,
dismissing the appeal filed by the appellant and affirming his conviction for offences
punishable under Sections 452, 392 and 397 of the Indian Penal Code and sentencing him
to undergo one year, two years and seven years rigorous imprisonment respectively with
fine in each case with default stipulation.

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In criminal trial one of the cardinal principles for the Court is to look for plausible
explanation for the delay in lodging the report. Delay sometimes affords opportunity to the
complainant to make deliberation upon the complaint and to make embellishment or even
make fabrications. Delay defeats the chance of the unsoiled and untarnished version of
the case to be presented before the Court at the earliest instance. That is why if there is
delay in either coming before the police or before the Court, the Courts always view the
allegations with suspicion and look for satisfactory explanation. Even a long delay can be
condoned if the witnesses have no motive for implicating the accused and/or when
plausible explanation is offered for the same. On the other hand, prompt filing of the
report is not an unmistakable guarantee of the truthfulness or authenticity of the version of
the prosecution.
The principle has been statutorily recognized in Section 210 of the CrPC. which enjoins
upon the Magistrate, when it is made to appear before him either during the inquiry or the
trial of a complaint, that a complaint before the police is pending investigation in the same
matter, he is to stop the proceeding in the complaint case and is to call for a report from
the police. After the report is received from the police, he is to take up the matter together
and if cognizance has been taken on the police report, he is to try the complaint case along
with the G.R. Case as if both the cases are instituted upon police report. The aim of the
provision is to safeguard the interest of the accused from unnecessary harassment. The
provisions of Section 210, CrPC, are mandatory in nature. It may be true that non-
compliance of the provisions of Section 210, CrPC., is not ipso facto fatal to the
prosecution because of the provision of Section 465 Cr. P.C., unless error, omission or
irregularity has also caused the failure of justice and in determining the fact whether there is
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. But even applying the very
same principles it is seen that in fact the appellant was in fact prejudiced because of the
non- production of the records from the police. Delay in filing the complaint because of
police inaction has to be explained by calling for the records from the police was
explained by this Court in Khedu Mohton and others v. State of Bihar (AIR 1971 SC 66).
Where the Court took exception to the fact that the complaint lodged with the police had
not been summoned or proved, no satisfactory proof of any such complaint had been
adduced before the Court, and none of the documents as would have become available
under Sec. 173, Cr. P.C., had also been brought on record.
17)STATE OF BIHAR VS JCS SALDHANA
Complaint registered by tisco alleging fraud against the railway officer (resp 6) – when
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matter investigated by railway officer, superior of resp 6 he gave clean chit – complaint to
cm by MLA and MP – sec of Bihar govt wrote letter with approval of cm to transfer
matter to the CBI – CBI declined – matter remitted to the inspector general vigilance of
the state.
ISSUES:
(la). Whether the State Government was competent to direct further investigation in a
criminal case in which report was submitted by the investigating agency under Section
173(2) of the CrPC, 1973 ('Code' for short) to the Magistrate having jurisdiction to try the
case?
(lb). Whether the Magistrate having jurisdiction to try the case committed an illegality in
postponing consideration of the report submitted to him upon a request made by Asst.
Public Prosecutor in charge of the case till report on completion of further investigation
directed by the State Government was submitted to him
HELD:
SEC 36 – POWER OF SUPERIOR OFFICER TO THE OFFICER IN CHARGE OF
OLICE STATION IS SAME AS THE LATTER
A combined reading of sections 2(h), 2(r), 36, 156 and 173(8) of the Criminal Procedure
Code, 1973 read with sections 1, 3, 12, and 22 of Indian Police Act, 1861 would indicate
that the State Government was not precluded from directing further investigation in the
case in which one investigating officer had submitted his 'final report' under section
173(2) of the Code, but on which the Court had not passed any order.
Section 156 enables the officer incharge of a Police Station to investigate without the
order of a Magistrate into a cognizable case committed within the area of the police
station. Under section 36 police officers superior in rank to an officer in charge of a
police station may exercise the same powers, throughout the local area to which they
are appointed as may be exercised by such officer within the limits of his station.
Section 173(8) enables an officer-in-charge of the Police Station to undertake for their
investigation in a case where he has already submitted a report under sub-section (2) of
section 173 and if in course of such further investigation he collects additional oral or
documentary evidence, he has to forward the same in the prescribed form to the
Magistrate
Inspector General appointed by the State Government has jurisdiction over the whole of
the State unless the contrary is indicated. If he is thus an officer superior in rank to an
officer in charge of a police station, he could in view of S. 36 exercise the powers of an
officer in charge of a police station throughout the local area to which he was
appointed meaning thereby the whole of Bihar State as might be exercised by an
officer in charge of a police station within the limits of his police station. It was to him
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that the investigation of the case was ordered to be handed over by the State Government.
7. Sub-section (8) of section 173 of the Code is not the source of power of the State
Government to direct further investigation. Section 173(8) enables an officer in charge of
a police station to carry on further investigation even after a report under s. 173(2) is
submitted to Court. But if State Government has otherwise power to direct further
investigation it is neither curtailed, limited nor denied by s. 173(8) more so, when the
State Government directs an officer superior in rank to an officer in charge of police
station thereby enjoying all powers of an officer in charge of a police station to further
investigate the case. Such a situation would be covered by the combined reading of s.
173(8) with s. 36 of the Code.
18)LALITA KUMARI VS STATE OF UP
FACTS:
The present writ petition, under Article 32 of the Constitution, has been filed by one Lalita
Kumari (minor) through her father, viz., Shri Bhola Kamat for the issuance of a writ of
Habeas Corpus or direction(s) of like nature against the Respondents herein for the
protection of his minor daughter who has been kidnapped. The grievance in the said writ
petition is that on 11.05.2008, a written report was submitted by the Petitioner before the
officer in-charge of the police station concerned who did not take any action on the same.
Thereafter, when the Superintendent of Police was moved, an FIR was registered.
According to the Petitioner, even thereafter, steps were not taken either for apprehending
the accused or for the recovery of the minor girl child.
HELD:
1) As such, a significant change that took place by way of the 1898 Code was with respect to the
placement of Section 154, i.e., the provision imposing requirement of recording the first information
regarding commission of a cognizable offence in the special book prior to Section 156, i.e., the
provision empowering the police officer to investigate a cognizable offence. As such, the objective of
such placement of provisions was clear which was to ensure that the recording of the first information
should be the starting point of any\ investigation by the police. In the interest of expediency of
investigation since there was no safeguard of obtaining permission from the Magistrate to
commence an investigation, the said procedure of recording first information in their books along
with the signature/seal of the informant, would act as an "extremely valuable safeguard" against the
excessive, mala fide and illegal exercise of investigative powers by the police.
(2) The use of the word "shall" in Section 154(1) of the Code clearly shows the
legislative intent that it is mandatory to register an FIR if the information given to the
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police discloses the commission of a cognizable offence.
10) 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. 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.
(11) 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 following direction were issued:

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.
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 offence if 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) 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.
vii) 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
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must also be reflected, as mentioned above.
19) Sakiri Vasu vs State Of U.P.
Appeal against judgement of HC – son of appellant army official – army official held that
he committed suicide – in the army court of inquiry held that it was suicide – appellant
made rep to the chief general of the army that he was murdered – in the second enquiry
held that same conclusion followed – HC held that matter was dismissed, and declined to
allow prayer for matter to be investigated by CBI and appeal to SC.
Held that the proper way was to first approach the local police for sec 154 and 156 before
requesting the CBI
In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a
Magistrate which are necessary for ensuring a proper investigation, and it includes the
power to order registration of an F.I.R. and of ordering a proper investigation if the
Magistrate is satisfied that a proper investigation has not been done, or is not being done
by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide
and it will include all such incidental powers as are necessary for ensuring a proper
investigation.
We are of the view that although Section 156(3) is verybriefly worded, there is an implied
power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal
offence and /or to direct the officer in charge of the concerned police station to hold a
proper investigation and take all such necessary steps that may be necessary for ensuring a
proper investigation including monitoring the same. Even though these powers have not
been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are
implied in the above provision.
If a person has a grievance that his FIR has not been registered by the police station his
first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or
other police officer referred to in Section 36 Cr.P.C. If despite approaching the
Superintendent of Police or the officer referred to in Section 36 his grievance still persists,
then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the
High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he
has a further remedy of filing a criminal complaint under Section 200 Cr.P.C.
In the present case, we are of the opinion that the material on record does not disclose a
prima facie case calling for an investigation by the CBI. The mere allegation of the
appellant that his son was murdered because he had discovered some corruption cannot, in
our opinion, justify a CBI inquiry, particularly when inquiries were held by the Army
authorities as well as by the G.R.P. at Mathura, which revealed that it was a case of
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suicide.
20) KARTAR SINGH VS STATE OF PUNJAB
FACTS: Petition challenging the constitutional validity of Section 9 of the Code of

Criminal Procedure (U.P. Amendment) Act, 1976 (U.P. Act No. 16 of 1976) by which the
Legislative Assembly of Uttar Pradesh has deleted Section 438 of the Code of Criminal
Procedure as applicable to the State of Uttar Pradesh.
There was a deletion of Applicability of section of Section 438 of Code of Criminal

Procedure, 1973 (CrPC) by Section 9 of Code of Criminal Procedure (U.P. Amendment)
Act, 1976 (1976 Act).
Legislative competence of state legislature was questioned to delete Section 438 of the
Code Whether the U.P. Act 16 of 1976 was violative of Articles 14, 19 and 21 of the
Constitution
HELD: deletion of the application of Section 438 in the State of Uttar Pradesh by Section
9 of the CrPC (U.P.) Amendment, 1976 does not offend either Article 14 or Article 19 or
Article 21 of the Constitution and the State Legislature is competent to delete that section,
which is one of the matters enumerated in the Concurrent List (List III of the Seventh
Schedule) and such deletion is valid under Article 254(2) of the Constitution.
Conduct of an accused seeking bail in the context of his background and the nature of
crime committed are to be evaluated before the concession of bail can be granted and that
the evaluation is fundamentally from the point of view of his likelihood of either
tampering with the evidence or unleashing a threat to the society during the period when
he may be allowed to be on bail Section 20(7) of the 1987 Act excluding the application
of Section 438 of the CrPC in relation to any case under the Act and the Rules made there
under, cannot be said to have deprived the personal liberty of a person as enshrined in
Article 21 of the Constitution
Whether High Court under Article 226 would be right in entertaining proceedings to
quash the charge-sheet or to grant bail to a person accused of an offence under the Act or
other offenses committed during the course of the same transaction exclusively triable by
the Designated Court?
Held, High Court has jurisdiction to entertain an application for bail under Article 226
and pass orders either way, relating to the cases under the 1987 Act, that power should be
exercised sparingly, that too only in rare and appropriate cases in extreme circumstances -
But the judicial discipline and comity of courts require that High Courts should refrain
from exercising the extraordinary jurisdiction in such matters - High Courts being
constitutionally obliged to ensure that any authority which exercises judicial and quasi-
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judicial powers in its jurisdiction functions within the framework of law, are entitled to
entertain the petition to determine if the proceedings were not an abuse of process of court
- But while exercising discretion the court must not be oblivious of the sensitivity of the
legislation and the social objective inherent in it and, therefore, should exercise it for the
sake of justice in rare and exceptional cases the details of which cannot be fixed by any
rigid formula.
Challenge to section 20(7) of the TADA Sub-section (7) reads thus:
"Nothing in Section 438 of the Code shall apply in relation to any case involving the
arrest of any person on an accusation of having committed an offence punishable under
this Act or any rule made thereunder."
It can be deduced from the reasoning of the Report of the Law Commission that where a
person accused of a non-bailable offence is likely to abscond or otherwise misuse his
liberty while on bail, will have no justification to claim the benefit for anticipatory bail.
Can it be said with certainty that terrorists and disruptionists who create terrorism and
disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty
if released on anticipatory bail. Evidently, the Parliament has thought it fit not to extend
the benefit of Section 438 to such offenders.
Further, at the risk of repetition, we may add that Section 438 is a new provision
incorporated in the present Code creating a new right. If that new right is taken away, can
it be said that the removal of Section 438 is violative of Article 21. In Gurbaksh Singh109,
there is no specific statement that the removal of Section 438 at any time will amount to
violation of Article 21 of the Constitution. Hence for the aforementioned reasons, the
attack made on the validity of sub-section (7) of Section 20 has to fail.
Constitutionality of section 20(8), 20(9) of the TADA Act
"(8) Notwithstanding anything contained in the Code, no person accused of an offence

punishable under this Act or any rule made thereunder shall, if in custody, be released on
bail or on his own bond unless-
(a) the Public Prosecutor has been given an opportunity to oppose the application for such release,
and
(b) where the Public Prosecutor opposes the application, the court is satisfied that there
are reasonable grounds for believing that he is not guilty of such offence and that he is
not likely to commit any offence while on bail.
(9) The limitations on granting of bail specified in sub-section (8) are in addition to the
limitations under the Code or any other law for the time being in force on granting of
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bail."
The conditions imposed under Section 20(8)(b), as rightly pointed out by the Additional
Solicitor General, are in consonance with the conditions prescribed under clause (i) and
(ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that section.
Similar to the conditions in clause (b) of sub-section (8), there are provisions in various
other enactments such as Section 35(1) of Foreign Exchange Regulation Act and Section
104(1) of the Customs Act to the effect that any authorized or empowered officer under
the respective Acts, if, has got reason to believe that any person in India or within the
Indian customs waters has been guilty of an offence punishable under the respective Acts,
may arrest such person. Therefore, the condition that "there are grounds for believing that
he is not guilty of an offence", which condition in different form is incorporated in other
Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and
104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the
principle of Article 21 of the Constitution.
21) Shivappa vs State of Karnataka
1. This appeal, by special leave, has been filed by Shivappa s/o Bundappa who was
Accused 2 in the trial court and Appellant 2 in the High Court and is directed against the
order of the High Court of Karnataka upholding his conviction and sentence for the
offence under Section 302 IPC.
2. The deceased, after consuming liquor, shortly before the day of occurrence went to
the house of his friend and accusing him of having illicit relations with his wife and
abused him. He thereafter went to the house of a doctor and abused him also in the
presence of some of his patients accusing him that he was having illicit relations with his
wife.
3. Appellant and few others had staged the death of the deceased by making it look
like a car accident – the wife and the appellant gave up during further investigation
admitted to the offence and finally gave up the location of the body – confessional
statement was then taken
4. TC convicted the appellant basis the confessional statement, then the HC also did
the same.
HELD:

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The Magistrate who is entrusted with the duty of recording confession of an accused
coming from police custody or jail custody must appreciate his function in that behalf as
one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his
conscience that the statement the accused makes is not on account of any extraneous
influence on him. That indeed is the essence of a 'voluntary' statement within the meaning
of the provisions of Section 164 CrPC and the rules framed by the High Court for the
guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as
to the voluntary character of the statement, he should also make and leave such material on
the record in proof of the compliance with the imperative requirements of the statutory
provisions, as would satisfy the court that sits in judgment in the case, that the confessional
statement was made by the accused voluntarily and the statutory provisions were strictly
complied with.
From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we
find that though he had administered the caution to the appellant that he was not bound to
make a statement and that if he did make a statement that may be used against him as
evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the
confession was being recorded by him in that capacity nor made any enquiry to find out
whether he had been influenced by anyone to make the confession.
From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his
deposition recorded in court it is further revealed that the Magistrate did, not lend any
assurance to the appellant that he would not be sent back to the police custody in case he
did not make the confessional statement.
The, failure of the Magistrate to make a real endeavor to ascertain the voluntary character
of the confession, impels us to hold that the evidence on the record does not establish that
the confessional statement of the appellant recorded under Section 164 CrPC was
voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of
the confession has left much to be desired and has detracted materially from the evidentiary
value of the confessional statement. It would, thus, neither be prudent nor safe to act upon
the confessional statement of the appellant.
22) K VEERASWAMY VS UOI
1. A complaint against the appellant, a former Chief Justice of a High

Court, was made to the CBI on which a case under s. 5(2) read with s. 5(I)(e) of the
Prevention of Corruption Act, 1947 was registered on 24.2.1976. On 28.2.1976 the
F.I.R. was filed in the court of Special Judge. The appellant proceeded on leave from
9.3.1976 and retired 8.4.1976 on attaining the age of superannuation.
2. Fir filed under sec 173(2) basis section 5 of the POCA mentioning that he had
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amount that was disproportionate to his income – special judge issued process for his
appearance
3. Judge filed appeal in HC to the which dismissed the case
4. On appeal to the SC the following questions came to be asked
1) whether a Judge of a High Court or of the Supreme Court is a 'public servant' within
the meaning of s. 2 of the Prevention of Corruption Act, 1947;
(2) Whether a Judge of the High Court including the Chief Justice, or a Judge of the
Supreme Court can be prosecuted for an offence under the Prevention of Corruption Act,
1947; and
(3) who is the competent authority to remove a Judge either of the Supreme Court or of
the High Court from his office in order to enable that authority to grant sanction for
prosecution of the Judge under the provisions of s. 6 of the Prevention of Corruption
Act, 1947.
HELD:
A Judge of a High Court or of the Supreme Court is a 'public servant' within the meaning of s. 2 of
the Prevention of Corruption Act, 1947.
1. Prosecution of a Judge of a High Court, including the Chief Justice, or a Judge of the
Supreme Court can be launched after obtaining sanction of the competent authority as
envisaged by s. 6 of the Prevention of Corruption Act.
3.1 For the purpose of s. 6(1)(c) of the Prevention of Corruption Act, 1947, the
President of India is the authority competent to give previous sanction for prosecution of
a Judge of a superior Court.
3.2 No criminal case shall be registered under s.154, Cr. P.C. against a Judge of the High
Court, Chief Justice of the High Court or a Judge of the Supreme Court unless the
Chief Justice of India is consulted in the matter.
3.3 If the Chief Justice of India himself is the person against whom the allegations of
criminal misconduct are received, the Government shall consult any other judge or
Judges of the Supreme Court.
3.4 There shall be similar consultation at the stage of examining the question of granting
sanction for prosecution and it shall be necessary and appropriate that the question of
sanction be guided by and in accordance with the advice of the Chief Justice of India.

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23) State Of Rajasthan, Jaipur vs Balchand
1. The petitioner-respondent was convicted and sentenced by the Sessions Court but
released after the judgment of the High Court. The petitioner surrendered before the trial
court as required under Order XXI rule 6 of the Supreme Court Rules after leave was
granted to the State to file an appeal against acquittal by the High Court and moved an
application for bail.
HELD:
The basic rule may perhaps be tersely put as bail, not jail, except where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences or intimidating witnesses and the
like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to
be exhaustive but only illustrative. It is true that the gravity of the offence involved is
likely to induce the petitioner to avoid the course of justice and must weigh with us when
considering the question of jail. So also the heinousness of the crime. Even so, the record
of the petitioner in this case is that, while lie, has been on bail throughout in the trial court
and he was released after the judgment of the High Court, there is nothing to suggest that
he, has abused the trust placed in him by the court; his social circumstances also are not
so unfavorable in the sense of his being a desperate character or unsocial element who is
likely to betray the confidence that the court may place in him to turn up to take justice, at
the hands of the court. He is stated to be a young man of 27 years with a family to
maintain. The circumstances and the social milieu do not militate against the petitioner
being granted bail at this stage. At the same time any possibility of the abscondence or
evasion or other abuse can be taken care of by a direction that the petitioner will report
himself before the notice station at Baren once every fortnight.

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Cr PC Master doc - Crpc full notes

Criminal Law - II (Christ (Deemed To Be University))

Studocu is not sponsored or endorsed by any college or university

Appointment of Special JM 5 Investigation by Police

Maintenance Complaint to Magistrate 70

• Essential conditions • Proceedings under JM

Bigamy and consequences Commencement of Proceedings (Mag)

Public Order & Tranquillity • Examination of Complaint

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Trial before Sessions Court Juvenile Justice Act

Trial of Warrant Cases by Mag. • Fundamental Principles

2. Constitution of Criminal Courts

Sec. 6 classes of criminal courts as

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Additional Metropolitan magistrate is also appointed by HC.

Conditions for appointment of Special JM or Metropolitan.

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3.Aid To Magistrate and Police

Duty of public to give info.

4 & 5Arrest and process to compel

Importance of procuring of accused.

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2 ways of procurement of Accused

• By issuing summons to the accused.

They mode of service are desalts in the sections of Sec.62-67.

Sec.63 deals with serving of summons to corporate bodies.

Sec.67 states to procedure to serving of summons outside local jurisdiction.

Arrest with or without warrant

• arrest made in pursuance of a warrant issued by a Magistrate; and

A warrant of arrest must have these essentials such as

• Authority given by a competent Magistrate for the arrest of a person.

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All this has been given in sec.70 to 73.

Sec.71 deals with sureties wrt to accused. The essentials are

(a) the number of sureties;

(c) the time at which he is to attend before the Court.

• Sec.77 to 81deals with mode of execution of warrant

Arrest without warrant.

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• Who commits a cognizable offence before police.

the police office is satisfied that such arrest is necessary

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person to cause damage to evidence

• Who is proclaimed offender

Sec.41- C states about having control rooms in all districts.

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Sec.44 empowers a magistrate to arrest under 2 circumstances

Arrest how made

Sec.46 states the manner in which arrest should be effected.

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Additional powers are given to effect arrest.

Post arrest procedures

Sec.54 A allows for examination of arrested person by medical practitioners

Sec. 54 Allows for identification of the accused arrested.

Right of the person arrested