Code of Criminal Procedure .pdf notes ..

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THE CODE OF CRIMINAL PROCEDURE
1. The criminal procedure code is both substantive &
procedural in nature.
Law is a popular term. It is very difficult to give a
uniform and precise definition of law. Law has been
defined differently by different jurists. The Government
prescribes a certain uniformity of human action to be
followed by the subjects in day to day for the welfare &
progress of the people & the society.
That is known as law. The duly of the stare is many fold
out of which maintenance of peace in the society and
administration of justice are important. Function of law is
to maintain law and order in the society and that people
can live in peace and pursue their respective goals.
Without law people can never be able to live in peace and
cannot achieve progress. Law is indispensable for human
existence.
Law may be classified in to different divisions. Such as
civil law, criminal law, Constitutional law etc. Law also can
be divided in to two major categories.
1. Substantive law 2. Adjective law
Adjective law is also knows as procedural law.
Substantive law defines rights and duties with right, life,
liberty and liabilities of individuals, substantive criminal
law defines and different offences and provides
punishments therefore ,Adjective law on the other
hand deals with the procedural aspect of the
substantive law. Adjective law prescribes different

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procedures to be followed in matter of enforcing the
rights provided under the substantive law Indian penal
code for example is an example of substantive law
where as the criminal procedure code is termed as a
piece of procedural law.
The criminal procedure code deals with classification
of courts and their constitution power and procedure to
be followed by them besides general provision of
procedure in holding trials etc. From the arrangement
of the criminal procedure code it can be said that it is a
piece of procedural law.
The criminal procedure code does not ideal with
procedure only .It also provides certain matters which
are substantive in nature. In other word in the body of
the criminal procedure code, the substantive rights of
individuals are also deals with. For example the right of
maintenance of certain categories of persons u/s. 125
the right of getting bails u/s.436, 437, 438, 439 the right
of possession of immovable property u/s 145 right to
remove public nuisances u/s.133 right to appeal under
chapter 29 and revision, and rules for disposal of
property u/s.451are some of the instance of
substantive law.
The functions of procedural law are
1. To provide jurisdiction to courts
2. To set in motion the machinery of justice
3. To provide methods to be adopted for different trials
and to provide ways and means for executing the
decisions of the court. All these provisions are there in
the code of criminal procedure that is why the Criminal

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Procedure Code falls within the category of an
adjective law since the code deals with substantive
law as discussed above , it can also be termed as a
piece of substantive law. To harmonize the above
discussion it can safely be concluded that the criminal
procedure code is not wholly procedural law in
natural. It is a mixture of both adjective and
substantive law. The major portions of the code
contain procedural law but however minor it may be, it
contains also some amount of substantive law. The
criminal procedure code is a happy combination of
both substantive and procedural law.
COMPLAINT :
The criminal law can be set in to motion in
several ways, out of which making complaint is one
.The term complaint has been defined under section 2
(d) of the code .The ordinary meaning of the term
complain is an act of expressing grievance . An
exhaustive definition of complaint has , however, been
provided in the code.
In order the constitute a complaint there must be the
following ingredients.
1. There must be an allegation.
2 . That allegation may be made either orally or in
writing.
3 . The allegation must relate to the commission of
any offence as defined under the penal law.
4 . That allegation must be made to magistrate.

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5 . That allegation must be made against certain
persons whether those persons are known or
unknown.
6 . The allegation must be made with a view that the
magistrate will take legal action provided under the
code.
7 . A complaint does not include a police report once
FIR has been lodged with the police , the police may
investigate into the matter and after investigation of
the case ,the police officer is to submit report under
section 173 to the magistrate. Such police report
disclosing commission of an offence may be divided in
to two categories . (a) one relating to the commission
of cognizable offences and (b) one relating to non-
cognizable offence. The police report disclosing
commission of cognizable offence is not included
within the definition of complaints, but police report
disclosing only commission of non cognizable offence
shall be deemed to be a complaint.
A complaint need not contain all details of the
prosecution evidence. It is also not necessary that a
complaint should be made by an aggrieved person.
Any body can make complaint to set the law into
motion. No particular form is prescribed in which the
complaint is to be made. A complaint need not be
presented in person. It is also not necessary that the
person making a complaint must have personal
knowledge of the facts constituting the offence. The
magistrate is empowered to make cognizance of
offence under S.190 cr.p.c on complaint. Complaint
plays a significant role in initiating criminal case.

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3 . Inquiry , investigation and Trial :
The terms like inquiry investigation and trial are
frequently used in context of criminal proceedings.
These three terms denote 3 different stages of a
criminals case. Though the code has defined inquiry
and investigation but it does not contain any definition
of trial. Trial is the concluding stage of a criminal stage
of a criminal proceeding where in the guilt of the
accused is inquired into for the purpose of inflicting
appropriate punishment. Trial relates to offences and
conducted by criminal courts. Trials according to the
nature of offenses committed are divided into 4
different categories, such as (1) Trials before courts
of sessions (2) Trial of warrant cases by magistrate
(3) Trial of summons cases by magistrate and (4)
Summary trials, trials are judicial proceedings.
The term inquiry has been defined in the code.
The definition of inquiry as given in the code is very
simple and it says two things (i) inquiry is different
from trial, and (ii) inquiries are conducted either by a
magistrate of a court.
Inquiry is a judicial proceeding , inquiry precedes
trials. The object of inquiry as observed by the
supreme court in V.C Shukla Vs state AIR 1980 SC
962 is to ascertain truth of the facts alleged. The
purpose of inquiry is to find out the prima facie truth of
the allegation made with a view to determine further
action to be taken there on .Inquiry is always
conducted by magistrate or by a court. Proceeding
under section 202 conducted by a magistrate are
inquiry in warrant cases the proceedings before the

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magistrate prior to the framing id charge are inquiry
as observed by the Supreme court in AIR 1974 SC 94
. Inquiry is not confined to offences only It extends to
inquiries which are not offences. For example
proceedings under chapter 8 relating of security for
keeping peace and for good behaviour(S 107 to 124)
and chapter 10 relating to maintenance of public order
and tranquillity under section 129 to 148 are inquires
within the meaning of section 2.
Investigation has been defined under the code.
Form the definition the following ingredients emerge.
1. Investigation is a proceeding
2. It is to be conducted either by a police officer or by
any person who is authorised by a magistrate in
this behalf.
3. Investigation cannot be conducted by
magistrate.
4. The purpose of investigation is collection of
evidence.
From the above definition it is seen that investigation
is altogether different form both trial and inquiry .The
object of investigation may be conducted dither by a
police officer or by any person of so authorized by a
magistrate, but a court or a magistrate has no legal
authority to conduct any investigation.
Investigation is a wide term and it includes many
things within its fold. Generally investigation means
and includes.
i. Proceeding to the spot where the offence is alleged
to have committed.
ii. Ascertainment of facts and circumstances.

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iii. Search and arrest of suspected persons.
iv. Collections of evidence including examination of
persons acquainted with the facts of the matter under
investigation and recording statements of persons
including accused.
v. Search and places and seizure of incarnating articles.
vi. Forwarding injured persons for medical examination.
vii. Forwarding accused persons to a magistrate.
viii. Sending the dead body for post mortem examination
and sending articles for other scientific examination.
ix. Consideration of evidence collected to form a final
opinion on the matter and
x. Submission of a report to the magistrate under section
173.
The police has a statutory power to investigate in to
a cognizable offence. Investigation in a non- cognizable
offence commences with the order of a magistrate. An
illegality of investigation as observed by the Supreme
court (AIR 1968 SC 1292) does not vitiate the jurisdiction
of the court for trial unless mis-carriage of justice has
been caused thereby. After the completion of investigation
the investigating officer is bound to submit a report.
Distinction between Inquiry, Investigation and Trial:
Investigation inquiry and trial denote three different
stages of a criminal trial. The first stage is investigation,
When a police officer either by himself or under an order of
a magistrate investigates into a case. Ordinarily after
lodging of FIR, investigation proceeds. On completion of

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investigation a report is sent to the magistrate
recommending either further proceeding in the matter or
dropping of the case. When investigating officer reports his
opinion that an offence has been committed the second
stage commences. The second stage is inquiry.
Ordinarily on receiving of the complaint the
magistrate holds inquiry. When police submits final report
after investigation a magistrate hold inquiry on protest
petition field against the investigation report. The purpose
of inquiry is to see whether there is prima facie case .The
inquiry is always conducted by a magistrate or by court
and never by anybody else. If no prima facie case is made
out the case is dismissed .If there is prima facie case the
accused is summoned to stand his trial. Once the accused
faces his trial the inquiry comes to an end, and trial
commences. Trial is the third and final stage of a criminal
case. The trial commences when the charge is framed.
From the above discussion it is clear that the above
3 stages of a criminal proceeding are different form each
other. Those distinction are shown below on a tabular
from.
Inquiry Trial
1. Inquiry is initial stage of a
cri-minal case out of
investigation inquiry and
trial inquiry is the second
stage.
2. Inquiry is conducted
either by a magistrate or by
a court.
1. Trial is the final stage of a
criminal proceeding.
2. Trial is always conducted by
a court or magistrate who is
competent to hold that.

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3. inquiry covers the
proceeding and continues
up to the stage of framing
the charge.
4. Inquiry may relate to the
matter which may be
offences or not.
5. The purpose of inquiry is
to ascertain the prima facie
case.
6. Inquiry never ends in
conviction or acquittal.
7. Inquiry is the primary
stage of
a trial. On the
recommendation
of inquiry, trial commences.
3. The trial commences with the
stage of framing the charge
4. Trial always deals with the
offence.
5. The purpose of trial is to find
out guilt of the accused.
6. A trial must invariably end
either in acquittal or
conviction of the accused.
7. Where inquiry ends trial
commences. Trial is based
upon inquiry.
Inquiry investigation
1. Inquiry is always
conducted by a magistrate
or court.
2. The purpose of inquiry is
to as certain the prima
facie. prima facie truth of
the allegation).
1.Investigation is always
conducted either by the police
officer or by any other person
&that person is authorized by a
magistrate to do so. Investigation
can river be conducted by a
magistrate or a court.
2. purpose of investigation is to
collect evidence for the
prosecution of the case.
3. Investigation is the first and

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3. Inquiry is the second
stage of a criminal case.
4. Inquiry commences with
the
filling of the complaint of
petition made to the
magistrate
or a court.
5. Inquiry may relate to
commission of an offence
or any other matter. Such
as to find out actual
possession existence of
public nuisance of claim for
maintenance etc.
6. Inquiry may be divided in
to 2 categories, judicial
inquiry.
7. In inquiry if statement of
any
person is a witness is
recorded, the person giving
the statement is required to
take oath and sign the
statement.
8. In inquiry there is no
provision of making any
search, seizure and arrest.
the preliminary stage of a
criminal proceeding.
4. Ordinarily investigation
commences with lodging of
F.I.R in certain cases petition
or complaint may be sent by
the magistrate for investigation.
5. Investigation always is made
with respect to commission
of offences.
6. Investigation is always non-
judicial.
7. In investigation the witnesses
are not required to put their
signatures in the statement
and no oath is adminstered to
the witnesses.
8. In investigation search seizer
and arrest are ordinarily made
9. At the end of the
investigation
the investigating officer is
bound to submit his report to
the concerned magistrate to
take further action in the
matter. However that recom-

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9. At the end of the inquiry
if
there is prima facie case
magistrate or the court
proceeds
against the person
concerned.
Further proceeding in the
matter is automatic.
mendation is not binding
on the magistrate or the court
Investigation Trial
1. Investigation is the
preliminary stage of a
criminal proceeding. It is
the foundation on which the
trial proceeds.
2. Investigation is always
non-judicial. It is an
administrative processes.
3. Investigation is
conducted either by police
officer or by any other
person if he is authorized
by the magistrate to do so.
4. Purpose of investigation
is to collect evidence.
5. Investigation never ends
in acquittal of conviction.
The investigation officer is
required to submit a report
1. Trial is the final stage of a
criminal proceeding. There can
be no investigation after trial.
2. Trial is a judicial proceeding.
3. Trial is always conducted
either by a magistrate or by a
court if they are competent to
do so.
4. Purpose of trial is to find
whether the accused is guilty or
not.
5. Trial always ends either in
acquittal or conviction.

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to the magistrate or court
recommending further
action to be taken against
the accused, if any.
6. During investigation,
search, seizure and arrest
are made.
7. Investigation is always
conducted by persons who
are sub-ordinate to the
magistrate or court.
6. During trial no such things
are made.
7. Trial is always conducted by
a court or magistrate who are
empowered and competent to
do so under the law.
4. Warrant case and Summons case :
The criminal procedure code has divided criminal
cases in to two major categories such as summons case
and warrant case. Both the cases have been defined in the
code. The definition of summons case is negative one
where as definition warrant case is positive in nature.
Warrant case means a case relating to an offence which is
punishable either with death, imprisonment for life or
imprisonment for a term exceeding two years and all other
cases are summons cases. From the above definition
warrant cases deal with offences of serious nature and
less serious nature, and less serious offense are placed
under the categories of summons case. However there are
some distinctions between the above two categories of
cases. Those are shown in the following tabular form.
Summon Case Warrant Case
1. Summons case
deals with less serious
1. Warrant case deals with more
serious offences.

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offences.
2. Offences punishable
with death, life
imprisonment or
imprisonment for more
than two years are
beyond the scope of
summons cases.
3. No charge is to be
framed in summons
case.
4. The court may acquit
the accused if the
complainant is found
absent.
5. Summons case can
be withdrawn with the
permission of the
magistrate.
6. Summons case can
be converted into a
warrant case.
7. Procedure in trial of
summons case is
slightly different from
the trial of warrant
cases.
2. Warrant case includes
offences punishable with death,
imprisonment for more than two
years.
3. Framing of charge is pre-
requiste for trial of warrant
cases.
4. The court can discharge the
accused if complainant doesn't
appear.
5. Warrant case can't be so
withdrawn. Some of the charges
may be withdrawn with the
consent of the court.
6.Warrant case can’t be
converted into a summons
case.
7. The procedure of trial of
warrant cases is also slightly
different from summon cases.
5. Powers of Criminal Courts :
There are different criminal courts to try different
types of offence and the same has been indicated at the
relevant places in the first schedule of the code. The

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criminal courts are empowered to inflict punishments.
Punishments are of different kinds such as 1) Death 2)
Imprisonment for life 3) imprisonment-rigorous or simple 4)
Forfeiture of property, and 5) fine. The various sentences
which the different courts may impose are provided in the
code. The sum and substance of the provision may be
summarized below.
Name of the court Sentences which it may
pass
1. High Court
2. (a) Sessions judge or
(b) additional sessions
judge
3. Assistant Sessions judge
4. a) Chief Judicial
magistrate
or
b)Chief metropolitan
magistrate.
5. a) Court of magistrate
first class, or
b)Metropolitan
magistrate.
6. Court of a magistrate
1. Any sentence authorized
by law.
by law, but sentence of
death if passed shall be
subject to confirmation by
the High Court
by except sentence of
death, imprisonment for a
term exceeding 10 years.
by law except sentence of
death, imprisonment for a
term exceeding 7 years.
5. Any sentence of
imprisonment not
exceeding 3 years or of
fine not exceeding rupees
10,000 or of both.
6.Anysentence of
imprisonment not
exceeding 1 year or of fine

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second class. not exceeding 5000( five
thousand) rupees or of
both.
The above table shows the maximum sentence that
can be passed by the respective courts shown above
under their substantive power. Sentence is a matter of
judicial discretion subject to mandatory statutory maximum
punishment prescribed by law . As the Supreme court has
observed in Modi Ram Vs State of M.P. AIR 1972 SC
2438 that the object of punishment is to bring home to the
guilty party the consciousness that the offence committed
by him was against his own interest or also against the
interest of the society of which he happens to be a
member. The sentences should neither be too severe nor
too lenient and the Court has to keep in mind the motive
and magnitude of the offence, the circumstances in which
it was committed and the age character and antecedent of
the offender. The question of sentence is always a difficult
and delicate matter for the court. The purpose behind the
punishment is based upon many factors including.
1. The protection of the public,
2. The prevention of crime,
3. The reformation of the offender and
4. Corporal sufferings of the convict for the crime
committee
The maximum penalty is intended for the worst case.
The determination of what should be the proper sentence
depend on the facts of each particular case. As the
Supreme court has observed in AIR 1980 SC 636 that in

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awarding sentence, need for rehabilitation and deterrence
is to be kept in mind. The punishment to be proper, fair,
effective and purposeful must fit not only to the crime but
also the criminal. The Supreme court has observed in AIR
1964SCb 1140 (Indo- China steam navigation company) to
the effect that modern criminology doesn't encourage the
imposition of severe or savage sentences because the
deterrent or punitive aspect of punishment is no longer
treated as a valid consideration in the administration of
criminal law , but it must be remembered that ordinary
offences are committed by person either under the
pressure of provoked and unbalanced emotions or as a
result of adverse environments and circumstances and so
while dealing with those criminals who, in many cases
deserve a sympathetic treatment and in a few cases are
more sinned against than sinners. Criminal law treats
punishment ,more as a reformative or corrective than as a
deterrent or punitive measure. However while imposing
sentences on the criminals measures like probation and
admonition should not be lost sight of.
6. Imprisonment in default of fine-(Section – 30)
The Section 30 empowers a magistrate to
award imprisonment in default of fine. The provision of
this section are to be read with the provision of section
65,66 and 67 of I.P.C it may be mentioned here, the
imprisonment in default of payment of fine is not a
substantive punishment, but is a default punishment
imposed for failure to pay the fine.
When offence is punishable with fine only section
67 of IPC provide that the imprisonment in default of

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payment of fine shall be simple and the term shall not
exceed the following scale.
1. Not exceeding two months when the amount of fine
Doesn't exceed rupees 50
2. Not exceeding 4 months when the amount of fine
doesn't exceed rupees 100.
3. Not exceeding 6 months in any other case.
4. To this limitation section 30 Cr.PC adds one more that is
the default imprisonment can only extend to 1/4 of the
term which the magistrate is competent to sentence.
The present section 30 of Cr PC speaks of three Principles
and those are-
The imprisonment in default of fine shall not
1. be in excess of the powers of the magistrate under
section 29 and
2. When imprisonment has been awarded as part of the
substantive sentence exceed 1/4 of the term of
imprisonment which the magistrate is competent to
inflict, and
3. The imprisonment so awarded under this section may
be in addition to substantive sentence of imprisonment
for the maximum term awardable by the magistrate
under Section 29 Cr P C.
The expression as is authorized by law suggests that the
provision of this section 30 shall be read with other
provisions of law including that of the section 65,66 and67
IPC. The imprisonment in default of the fine is not a
substantive punishment and it is imposed for failure to pay
the fine. It is awarded only as a measure to enforce
payment of fine. Hence, period of imprisonment in default
of fine can't be added to the substantive sentence

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imposed by the court to negative the jurisdiction of the
magistrate. Another thing to be not lost sight of is that
sentence of imprisonment for default in payment of fine
shall not be directed to run concurrently with the
substantive sentence of imprisonment.
As provided by the Supreme court in Basiruddin
Ashraaf Vs State of Bihar AIR 1957 SC 645 a conjoint
reading of section 30 of Cr P.C and Section 40 and 67 of
IPC makes the position clear that a sentence of
imprisonment can be awarded in default of payment of fine
even though not specifically provided by a statute.
7. Concurrent and Consecutive Sentences :
Section 218 Cr has provided that for every distinct
offence of which any person is accused there shall be a
separate charge and every such charge shall be tried
separately. But the above provisions have some
exceptions .An accused may be tried for several offences
in one trial.
Provisions of section 31 shall apply when a person
is convicted at one trial of two or more offences and the
court sentences him for such offences to the several
punishments consisting of imprisonments for specific
offences .When in a case an accused is convicted for two
or more offences the court is to specify as to how the
several sentences of imprisonment are to run, either
simultaneously or one after another. Simultaneously
means concurrently and one after another means
consecutively. In cases where several sentences of
imprisonment are to run concurrently ,the lesser term of

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imprisonment shall merge in the greater, and the convict
will remain in jail for a period which is longer.
For example an accused is found guilty for several
offences, numbering 3 . The court passes sentence of
imprisonment for the first offence 1 year for second
offence 2 years, and for the third offence 3 years and all
the sentence are ordered to run concurrently. In such case
the convict is to remain in jail for 3 years only, because 3
years imprisonment is the longest.
But if the court says while passing the
sentences that the above sentences of imprisonment
are to run consecutively in such cases the above three
sentences of imprisonment are to be added together, the
aggregate of which comes to 6 years. Hence the convict is
to remain in jail for 6 years. Because in cases of
consecutive sentences all the sentences are to run one
after another .
When several sentence are to run consecutively
the court is to follow three principle as provided under
Section 31 Cr P.C Those 3 principles are :-
1. In no cases shall such person be sentenced to
imprisonment for a longer period than 14 years.
2. The aggregate of several punishments of imprisonment
shall not exceed twice the amount of punishment which
the court is competent to inflict for a single sentence.
3. However for the purpose of preferring appeal the
aggregate of the consecutive sentences passed shall
deemed to be single sentence.
For example, if an accused is convicted of several
offences at one trial, say five years imprisonment for 1st
offence ,6 years imprisonment for 2nd offence and 7 years

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imprisonment for the 3rd offence and the court directs that
the above sentences are to run consecutively. Such order
of the court shall be illegal because the aggregate of all
these sentence exceeds 14years Secondary if that court
is the chief Judicial Magistrate whose substantive power of
awarding imprisonment is within 7 years he can't exceed
twice the amount if his substantive power as in the instant
case the aggregate punishment comes to 18 years,
whereas the aggregate punishment ought to have been
within 14 years (twice of the amount of punishment which
the court is competent to inflict for a single offence).
The provisions of section 31 impose a positive
duty on the court who is going to convict an accused at
one trial of two of more offences. The court is to clearly
specify in its order whether the sentences of imprisonment
are to run concurrently of consecutively.
8. Law relating to Arrest :-
The term arrest very much popular and
frequently used in criminal law. The arrest has not been
defined. The literal meaning of the word arrest is to bring
to a standstill, to seize to catch or to deprive a person of
his free movement. When a person is arrested he is
detained by the authority till liberated on bail in criminal
cases, physical presence of the person arrested is
required. In order to procure his presence arrest is made
to bring him before the authority. He is prevented to move
freely without the order of the authority.
Section 46 has provided as to how arrest is to be
made. According to the provision, person making the
arrest shall ask the person to be arrested to submit to the
custody either by word or by action . If he doesn't submit

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the person making the arrest shall actually touch or
confine the body of the person to be arrested. If such
person forcibly resists the arrest, or attempts to evade the
arrest, all means necessary to effect arrest may be used.
In every case hand cuffing or roping is not necessary.
While arresting the person effecting arrest is not entitled to
use more force than necessary.
Chapter 10 of the criminal procedure code in its 20
Section from 41to 60 deals with arrest .The main
provisions as provided in the Cr PC with regard to arrest
are :-
1. Person arrested to be informed of the ground of
arrest and of right to bail.
2. Person arrested may be physically searched.
3. Person arrested may be medically examined and
4. Person arrested not to be detained for more than
24 hours, in absence of special order form
magistrate.
The Supreme court in jogendra kumar Vs state of
UP AIR1994 SC 1349 and in D.K Basu Vs state of West
Bengal AIR 1997 SC 610 has issued certain guidelines to
be followed in matters of arrest in Jogendra Kumar the
Supreme Court has said that a person is not liable to
arrest merely on the suspicion of complicity in an offence.
There must be reasonable justification in the opinion of the
officer affecting arrest that such an 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 that amounts to arrest. The fact and place of
arrest must be intimated to a friend or relative of the

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arrested and entry to that effect shall be made in the case
diary.
In D.K Basu case supreme court has
issued as many as 11 guidelines to be followed in matters
of arrest, Such guidelines are :-
1. The name, designation, identification of police personnel
carrying out the arrest must be recorded in a register.
2. At the time of arrest the police officer shall prepare a
memo which shall be attested at least by on witness
who may be either a member of the family of the
arrestee or a respectable person of the locality. Such
memo shall be countersigned by the arrestee also and
shall also contain the time and date of arrest.
3. A person who has been arrested shall be entitled to
have one friend or relative informed about the fact and
place of his arrest.
4. The time place of arrest and place of detention must be
notified by the police through the legal aid organization
and the police station of the area concerned
telegraphically if the next friend or relative of the
arrestee lives outside the district, where the arrest is
made.
5. The person arrested must be informed of this right to
have someone informed of his arrest.
6. An entry must be made in the diary at the place of
detention regarding the arrest of the person and
information given to friend.
7. The arrestee on his request should be examined of his
injuries. That inspection memo must be signed by the
arrestee and the police officer and a copy of it must be
given to the arrestee.
8. Arrestee should be subject to medical examination at
every 48 hours of his detention by a doctor whose name

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finds place in the panel of registered doctors approved
for the purpose.
9. Copies of all documents including memo of arrest etc.
Should be sent to the concerned magistrate.
10. The arrest may be permitted to meet his lawyer during
interrogation.
11. The fact of arrest must be displayed in the police
control room of all districts and state headquarters within
12 hours of arrest for general information.
Since power of arrest has been grossly
misused by the police in derogation to the fundamental
right of liberty of the arrestee, the Apex court had to issue
such guidelines. In order o secure the precious right
guaranteed by Article 21 of the constitution are not denied
to arrestees. Transparency of action and accountability are
two possible safe guards which the Apex court insisted
upon.
In Judicial officers service association Vs. State
of Gujrat AIR 1991 S.C 2176 the Supreme court has also
issued certain guidelines to be followed by the police in
matter of arrest and detention of judicial officers.
9. Who Can Make Arrest :-
The term police and arrest have become so
popular that both the terms are interchangeably used.
Where there is arrest the name of the police is used and
when the word police is used the term arrest automatically
is referred to. The ordinary view of the people is that only
police can effect arrest and non else. It is true the Police
enjoys some unrestricted power of affecting arrest but at
the same time others are also competent to effect arrest.

24
Any police officer without an order from a
magistrate and without a warrant, arrest any person as
provided under S.41 of the code.
1. Who has been reasonably suspected of being
concerned in any cognizable offence.
2. Who has in his possession without lawful excuse any
implement of house breaking.
3. Who has been proclaimed as an offender.
4. Who is found with stolen property.
5. Who obstructs a Police officer while in the execution
of his duty.
6. Who is reasonably suspected of being a deserter from
armed forces of the Union.
7. Who has been reasonably suspected of having
committed an offence outside India and for which he
is liable to be apprehended under law relating to
extradition.
8. Who being a released convict commits breach of any
law.
9. Who is requisition by another police officer to be
arrested.
10. Who is required to be arrested under section 109
and110
11. Who in presence of a police officer committed a
non-cognizable offence and refuses to disclose his
name and residence.
12. Any private person may arrest or cause to be
arrested by person under section 43 the following two
situation.
i) If such person in his presence commits a non-bail
able and cognizable offence or
ii) Any proclaimed offend

25
If private person arrests, immediately he is to make
over such arrestee to the nearest police officer and the
police officer may re-arrest such person.
13. A magistrate whether executive of judicial can
also effect arrest under 44 only under one situation
that is if any person commits any offence in the
presence of a magistrate within his local jurisdiction
such magistrate may himself arrest or order any
person to arrest the offender. A person arrested by a
magistrate under this provision must be produced
before another competent magistrate within 24 hours.
He himself can't pass an order of remand under
section 167,Cr P.C.
The general impression of the people that, only
the police officer can arrest and none else is not correct.
Any of the 3 categories of persons discussed above can
effect arrest under the situation discussed above. Arrest is
an important subject. It plays a significant role in the field
of criminal administration.
8. Proclaimed Offender :-
The term proclaimed offender is very often used
in the criminal courts but, the term had not been defined.
Law relating to proclaimed offender has been dealt with
under section 82 to 86 of the code.
Proclaimed offender is an offender against
whom allegation have been made to have committed the
offence. If such offender against whom warrant of arrest
has been issued by the court either has absconded or
concealing himself that such warrant of arrest can't be
executed, in such situation the court may punish a written
proclamation, requiring him to appear at a specified place
and at a specified time within a period of 30 day from the

26
date of publication of such proclamation such proclamation
shall be published in ordinary place of residence or village
or town of the offender and a copy there of shall be affixed
to some conspicuous part of the court house. The court
may also if it thanks fit direct a copy of the proclamation to
be published in a daily newspaper, circulating in the
locality.
Once such proclamation is issued in respect of an
offender, such offender comes to be known as a
proclaimed offender.
The court while issuing the proclamation the
court if satisfied that such offender is about to dispose or
remove whole or any part of his property, the court may
order the attachment of movable or immovable property of
such oftener to appear before the court. In spite of such
proclamation and attachment if the offender doesn't
appear within the time specified, the court may put the
attached property to sale. However ,the court has power
under section 84 of the code to decide claims and
objections if any made to such attachment. Once
proclamation has been made, such proclaimed offender
may be arrested either by the police or by any private
individual. If the proclaimed offender appears or is brought
before the court the court the court may in its discretion
release the property from attachment.
11. Security for keeping peace and of good
behaviour:-
Maintenance of peace in the society is the
paramount duty of law in general and in the criminal law in
particular. This fundamental duty has been discharged by
the law resorting to :
1. Punitive, and 2. Preventive actions.

27
The entire Penal law defines various offences and
provides suitable punishments. The Indian Penal Code is
an example of the punitive measures. The provisions of
section 106 to 124 deal with preventive actions under the
criminal law and the same are to be followed by criminal
courts. This preventive criminal jurisdiction has been
shared by both the judicial and executive courts. The
judicial courts are to exercise their powers under Section
106 whereas, the provisions under Section 107 to 124
are to be implemented by the executive magistrates, by
taking security bonds form the potential peace breakers. It
is needless to say that provisions of section 106 and 107
are counterparts of the same legislative policy.
Prevention is always desirable as prevention is better than
cure. The chapter 8 of the Criminal procedure code deals
with preventive justice.
The procedures enumerated under section 106
are exclusively meant for judicial courts. In order to attract
to provisions of section 106 the following circumstances
must exist :
1. A criminal case must be pending before a judicial
court.
2. That judicial case must be (a) A court of session or (b)
A court of a magistrate first class or (c) A court of appeal
or ( d) A court of revision.
3. The point of time at which the court is to exercise its
power under section 106 mist be when the court is about
to pronounce the judgment in the case.
4. The court must find the accused guilty of offence and
accordingly convict him.
5. The offence of which the accused is found guilty must
be one of the offences enumerated under sub-Section 2 of

28
section 106 such as (a) member of an unlawful
assembly.(b) rioting (c) hiring persons to join unlawful
assembly (d) continuing in unlawful assembly even after it
has been commanded to disperse,(e) assaulting or
obstructing any public servant, in discharge of his duty (f)
harbouring person hired for an unlawful assembly (g)
being hired to take part in an unlawful assembly or riot. (h)
affray,(i) any offence consisting of use of criminal force or
mischief or criminal intimidation or likely to cause breach of
peace.
6. The court at the time of pronouncing judgment must be
of the opinion that it is necessary to take security form
such convict for keeping the peace.
If all the above ingredients are present then
7. The court may order him to execute a bond with or
without sureties for keeping the peace.
8. The period for which the security bond is to be taken
shall not exceed 3 years.
Although an order to execute the above bond
before an offence is actually committed has the
appearance of an administrative order, it is really judicial in
character. Section 106 comes into operation when a
person is “convicted” of the above offence .If the conviction
is set a side on appeal or other wise , the bond so
executed shall become void. The expression keeping the
peace or a breach of the peace doesn't necessarily mean
a breach of the public peace. The offence of causing hurt
to a person involves a breach of the peace, whether it
takes place in a private room or in the open street.
The provision of Section 106 are aimed at
persons who are a potential danger to the public by reason

29
of commission of certain offences, and are intended to
secure maintenance of public peace and to allay public
apprehension. The court has been given wide discretion
which it will not exercise unless satisfied that there is a
reasonable apprehension of further bleach of peace.
10. Proceedings under Section 107 to 110
The maintenance of peace is the paramount
consideration of the criminal law. Certain powers have
been given to both judicial as well as executive courts to
see that peace is maintained in the society. The powers
given under section 106 are meant to be exercised by the
judicial courts, whereas powers given under Section 107
to 124 are to be exercised by executive magistrates.
Chapter 8 under which these powers are enumerated
deals with preventive measures of the criminal courts.
Section 107 Cr P.C deals with security for
keeping the peace where there is apprehension of breach
of peace .This section is preventive and not punitive in
nature.
In order to attract the provision of section 107 the
following statutory requirements are necessary.
1. There must be some information given to a magistrate.
2. Such magistrate must be an executive magistrate.
3. That information must specify that certain person is
likely either to (a) commit a breach of peace, or (b) disturb
the public tranquillity, or (c) to do any wrongful act that
may probably occasion a breach of peace or disturb the
public tranquillity.
4. The magistrate must be of opinion that there is
sufficient ground for proceeding against such person.

30
5. The magistrate may require such person by a specific
order to show cause why he should not be ordered to
execute a bond with or without sureties for keeping the
peace for such period.
6. Such period of the bond shall in no case exceed one
year
7. In order to exercise the power under section 107 the
place where the breach of the peace or disturbance is
apprehended must be within the local jurisdiction of such
magistrate or the person who is likely to commit the above
breach of peace or disturb the public tranquillity must be
residing within his jurisdiction.
8. The show cause notice to be served on such person
must be as requirements of section 111, namely (a) the
magistrate shall make an order in writing ,(b) he must set
forth the substance of the information received,(c) the
amount of bond to be executed must be mentioned (d) the
term for which the bond is to be enforced must be
mentioned,(e) the number, character and class of sureties
(if any) required must find place in the show cause notice.
The passing of this pre-liminary order is obligatory.
The show cause notice issued to the delinquent must be
accompanied by the order.
After the delinquent appears before the
magistrate, the magistrate shall hold inquiry as to the truth
of the information and shall take such evidence as may
appear necessary. The procedure of inquiry to be followed
shall be as nearly as that of summons case, the inquiry
under section 116 shall be completed within a period of 6
months form the date of its commencement and if the

31
inquiry is not completed within 6 months, it shall stand
terminated. If the information is found to be true and the
magistrate is of the opinion that the delinquent should
execute a bond ,the magistrate shall pass the order
accordingly. If the person fails to execute bond he shall be
detained in prison.
A proceeding under this section may be
dropped at any stage when the magistrate is satisfied that
there is no danger of any breach of peace.
The executive magistrate may exercise similar
powers and follow similar procedure while exercising this
power under section 108,109 and 110. The substance is
same through facts and circumstances of the case shall
differ in the above sections.
11. Order for Maintenance :-
It is the natural moral and fundamental
duty of every person to provide maintenance to his wife,
Children and parents, when they are unable to maintain
themselves. Right to maintenance is a civil right of a
dependant. This right has been more suitably and
adequately dealt with under the respective personal laws
of the person concerned and the same gives rise to civil
remedies. However right to maintenance finds a place in
this Criminal procedure code, presumably with a view to
provide a swift cheap and a stop-gap remedy against a
person who despite sufficient means neglects of refuses to
maintain his dependants, who are unable to maintain
themselves. The provision under section 125 is a
measure of social justice, falling within the constitutional
sweep of Articles 15 (3) and 39 , guaranteed to protect the
weaker section like women, children and aged parents. It

32
is a secular legal safeguard irrespective of the personal
laws of the parties.
The legislative intent behind the section is to compel a
man to perform his moral obligations which he owes to
society in respect of his wife, children and parents, so that
they are not left unsecured beggared for and destitute on
the scrap-heap of society and thereby driven to a life of
vagrancy, immorality, and crime for their subsistence. The
object of this section is to prevent destitution in public
ground and vagrancy. As the Supreme Court has put it,
the provision of section 125 has a social purpose and
sister clauses in their interpretation must receive a
campassionate expanse of the sense that the words
permit. In this generous jurisdiction a broader perception
and appreciation of facts and their bearing must govern
the verdict not chopping little logic or tinkering with burden
of proof (AIR 1979 SC362 ). The jurisdiction of the
magistrate under section 125 is preventive and not
remedial and certainly not punitive. Section 125 prescribes
a summary procedure and the findings reached under
section 125 are not final and the parties can agitate their
rights in civil courts ( Nand lal AIR 1960 SC 882).
1. The claim for maintenance may be made against any
person who having sufficient means either neglects or
refuses to maintain the claimant. Such claim can only be
made before a magistrate first class.
2. Only four categories of persons who are unable to
maintain themselves can prefer claims nefore the court.
They are (a) legally married wife ,(b) parents, (c)
legitimate or illegitimate minor children, Whether
married or not (d) legitimate, illegitimate children who by
reason of any physical or mental abnormality or injury

33
unable to maintain themselves. It may be maintained
here that father of a minor female married child is bound
to maintain her until she attends her majority, if the
husband of such minor female child is not possessed of
sufficient means to maintain her.
3. The ceiling of rupees 500 as the maximum amount
awardable as maintenance under section 125 has been
done away with, by the latest Amendment Act (50 to
2001) ,Which has come in effect from 24.04.2001. Now
the court can grant any amount it thinks fit.
4. The court has also been empowered to order for interim
maintenance during pendency of the proceeding.
5. Sufficient means doesn't signify only visible means, if
one is healthy and able bodied he must be held to have
means to provide maintenance. Here means includes a
capacity to earn.
6. Neglect or refusal of the opposite part to maintain is the
first essential to be proved in order to get maintenance.
7. On default in payment of maintenance if without any
justification she declines to live with her husband.
8. Wife shall not be granted with maintenance if without
any justification she declines to live with her husband.
9. No wife shall be entitled to get maintenance if she
comes under any of the three circumstances.
a) If she is living in adultery.
b) If without any sufficient reason she refuses to live
with her husband or
c) If the husband and wife are living separately by
mutual consent. If any of the three circumstances is

34
proved to exist, the order of maintenance, if already
made, shall be cancelled.
10. The provisions of Section 125 is secular in nature, it
applies to every type of persons irrespective of their
religion and even to foreigners living in india.
11. A word is necessary to be mentioned here about the
position of law with regard to divorced Muslim wife. In the
case of Shah Bano AIR 1985 SC 945, the Supreme Court
had held that a divorced Muslim woman is entitled to
maintenance under Section 125 Cr P C but subsequent
to this decision the Muslim Women (protection of rights on
divorce) Act 1986 has been passed, which has practically
made section 125 inapplicable to divorced Muslim wives.
Such divorced Muslim wife is to claim maintenance under
the provisions of the above 1986 Act. A reference may be
made to a decided case of the Supreme Court in Daniel
Latifi Vs Union of india (2001) 7 S.C.C 740, Where in it is
held that the husband is bound to maintain his divorced
wife through out her life (even after the period of iddat).
Section 127 and 128 are consequential in nature.
The case for maintenance can be initiated before judicial
magistrate first class anywhere in the district where parties
reside. The order of maintenance can be modified or
cancelled on sufficient reasons and the order may be
enforced by and executed any magistrate.
14. Maintenance of Public order and tranquillity (
Section 129 to 148)
The maintenance of public order, peace and
tranquillity in the society is the first priority of law. Unless
there is peace no society can grow and no individual can
develop his personality to achieve his goal. Peace and

35
tranquillity are the most precious things for human beings
and their preservation and maintenance are highly
essential for any society. Public order peace and
tranquillity can be properly maintained if the causes
responsible to disturb or destroy them are either removed
or nipped at the bud or put under proper check.
In order to achieve the above basic objectives
of law, the legislators in their wisdom, have enumerated as
many as 4 such potential, dangerous factors which are
considered to be major sources of danger for maintenance
of peace. Those 4 factors are
A) Unlawful assembly
B) Public nuisance
C) Urgent cases of nuisance and apprehended danger,
and
D) Dispute relating to possession of immovable property.
If the above major 4 factors can be promptly and
suitably tackled at their very inception then there will be no
major obstacles in the way of maintaining peace. Keeping
this legislative objectives in mind adequate provision have
been made under chapter 10 of the Cr PC.
A. Unlawful assembly :
First in kind comes unlawful assembly. If any unlawful
assembly is seen, it should be immediately dispersed in
the following manner.
1. Any executive magistrate or officer in charge of a police
station may command such unlawful assembly likely to
cause disturbance of the public peace to disperse.
2. If the assembly does not disperse, the above officers
may proceed to disperse such assembly by force and if
necessary may arrest the members of such assembly.

36
3. Despite the above two measures if such assembly can
not be dispersed, the executive magistrate may cause the
assembly to be dispersed by the armed forces and also
arrest the members of such assembly.
4. While dispersing such unlawful assembly officer of the
armed forces shall obey the requisition of the executive
magistrate and shall use as little force and to do as little
injury to person and property as is necessary.
5. There shall be no prosecution against any person for
any act purporting to be done under Section 129 to 131
except with the sanction of the Government.
The term unlawful assembly has not been defined
in Cr. PC. So the same is to be understood in the sense as
provided under Section 141 IPC.
B. Public Nuisance :
Public nuisances have always been considered to
be potentially dangerous to the maintenance of public
order and tranquillity. Public nuisances have not been
defined in the Cr. P C. The provisions of sections 268 to
294 -A, IPC, however, relate to public nuisances which are
made punishable under the penal code. Here in the Cr.
PC procedure has been laid down for speedy removal of
certain categories of public nuisances. It may be
mentioned here that nuisances may be either private or
public. Removal of private nuisance is a matter within the
jurisdiction of civil courts, through under certain
circumstances civil suits are maintainable for removal of
public nuisances. Public nuisance is always considered to

37
be offensive to the public, and inconvenience, discomfort,
annoying or endangering the safety of the public.
Section133 enumerates 6types of public nuisances, such
as
1. Any unlawful obstruction put in any way, river,channel
2. The conduct of any trade or occupation or keeping of
any goods or merchandise injurious to the health or
physical comfort of the community.
3. Disposal of any substances likely to occasion
conflagration or explosion.
4. Any building tent structure or tree likely to fall and
cause injury to persons living or passing nearby.
5. Any tank well or excavation adjacent to any public
place without any fence.
6. Any dangerous animal.
Section 133 provided speedy and summary remedy
in case of urgency, where danger to public interest or
public health and safety is conceded. The purpose is that
unless immediate steps are taken irreparable injury will
be done to the public and maintenance of public order
and tranquillity will be jeopardized. The power under
section 133 is to be exercised by Sub-divisional
Magistrate, District Magistrate or any other executive
magistrate of specially empowered in that behalf. When
reliable information reaches the above executive
magistrates regarding existence if any public nuisances of
above 6 categories, a proceeding is to be initiated with
serving a show cause notice on the person concerned

38
why such public nuisances will not immediately be
removed S 133 proceeding is a regular inquiry where
evidence is to be taken form both the sides and if
existence of such public nuisances is proved the
magistrate shall cause the same to be removed
immediately. No order made by a magistrate made under
Section 133 shall be called in question in any civil court.
Any person violating the order of the magistrate by not
removing the public nuisances shall ne liable to be
punished under Section 188 IPC.
C. Urgent Cases of nuisance (Section-144)
Provision of Section 144 is meant to deal with urgent
cases of nuisances and apprehended danger. Provisions
are meant to meet with emergency situations and cases
of urgency to keep the matter in status quo. When district
magistrate or sub-divisional magistrate or any other
executive magistrate specially empowered gets reliable
information that immediate prevention or speedy remedy
is desirable in certain categories of cases of nuisances or
apprehended danger to prevent obstruction, annoyance
or injury to any person or danger to human life or
disturbance to public tranquillity, the above executive
magistrates may resort to section 144 .
Power under section 144 are to be exercised in
cases to grave emergency. The preservation of life and
property is the first and foremost duty of the Government
and to secure this end, power is conferred to interfere
with even the ordinary rights of the members of the
community. The gist of action under section 144 is the
urgency of the situation, its efficacy lies in the likelihood
of being able to prevent some harmful occurrences. It is
not ordinary power flowing from administration, but a

39
power to be used in judicial manner. As the Supreme
Court has observed that sometimes a person may be
prevented from doing something even upon his own
property provided the doing of perfectly legal act
constitutes a danger to human life, health or safety of
others or to public peace and tranquillity (AIR 1978 SC
422) Section 144 is not in conflict with Article 19 of the
constitution.
The guiding principles for applying the provisions of
section 144 are given below :-
1. It is intended for use only in cases of grave
emergency where immediate prevention or speedy
remedy is essential in the interest of public.
2. It is to be resorted to only when the magistrate is
satisfied that the use of other power would not be
effective.
3. The power should be exercised in a fair manner in
defense of legal rights rather than in suppressing them,
in the repression of illegal acts rather than interference
with lawful rights (1981 Cr LJ 1835 SC).
4. This power shall be exercised temporarily to
override private rights and restrain individuals from doing
perfectly lawful acts, as in conflict between public
interest and private rights, the former must prevail.
5. Orders of civil courts should not be interfered with
and every Endeavour should be made to respect the
rights declared by civil courts.
6. No order under this section shall remain in force for
more than two months unless the State Government
extends for such further period not exceeding
6monthsform the date of expiry of the order.

40
The order under section 144 must be a written order
containing material facts to show that it was justified and
non-compliance where of would vitiate the order. It must
clearly sate who are prohibited and which acts are
prohibited. Order may be passed against individual or
public generally. Disobedience of order under section
144 is punishable under section 188 IPC. Successive
order of section 144 in respect of the same dispute is
illegal.
D. Dispute concerning Possession of immovable
property ( Section -145) :
maintenance of public order and peace is the
paramount consideration of law in general and criminal
law in particular. Besides unlawful assembly, public
nuisances and urgent cases if nuisance and
apprehended danger, the fourth obstacle that comes in
the way of maintenance of peace and tranquility is the
dispute concerning the possession of immovable
property, Which may be land or water or boundaries
thereof. This section 145 confers powers on executive
magistrates. Such magistrates get jurisdiction to initiate a
proceeding under section 145 when a dispute over
possession of any immovable property is likely to cause
breach of the peace. So the emphasis is on the
likelihoods of the breach of peace. Under this section a
speedy remedy is provided. The order passed under this
section is temporary in nature and the party found in
possession is entitled to remain in possession until he is
evicted there form, in due course of law and that too on
final determination of the dispute by a competent court.
Disputes relating to possession is of 2 types

41
2. Actual physical possession and
3. Right to possess.
With regard to actual physical possession it
may be said that actual physical possession means
the possession of the person who has his feet on
the land, Who is ploughing it, sowing it or growing
crops on it entirely irrespective of whether he is the
owner of the land or not .Actual physical possession
will vary with the nature of the subject matter but
one thing is to be made clear that actual physical
possession of a trespasser without any title
whatever. The aim and object of the section is
maintenance and preservation of the public peace
and to maintain obviously the status quo. So the
magistrate is to see actually who has the physical
possession on the date when the proceeding is
initiated right to possess is different fro actual
physical possession. Right to possess is connected
with ownership of the land. The owner of a land has
always right to possess the land . In S.145
proceeding the magistrate need not go into the
question of little. The question of title is not relevant
in a proceeding under section 145. The Supreme
Court in Bhinka Vs Charan Singh AIR 1959 SC 960
has held that in passing an order under section 145
the magistrate does not purport to decided in due
course by law. The foundation of his jurisdiction is
an apprehension of the breach of the peace, the
orders are thus merely police orders and decide no
question of title.
But if a party is dispossessed wrongfully from the
land in dispute within 2 months before the
preliminary order, then the magistrate shall take into

42
consideration that fact of dispossession while
deciding the dispute and shall declare the
possession of the party who has been so
dispossessed.
The guilding principles for applying the provisions of
section 145 are :
1. The power given under section 145 shall be
exercised only by an executive magistrate.
2. There must be a dispute concerning
possession of immovable property. Dispute
means actual disagreement existing between
the parties on the question of possession at the
time of the initiation of the proceeding.
3. The magistrate gets jurisdiction only if the
dispute is likely to cause breach of the peace.
Once the likelihood of breach of peace is not
there the magistrate loses his jurisdiction and
on that count the proceeding is to be dropped.
4. In the S.145 proceeding the question of actual
physical possession is to be determined
without reference to the question of ownership
and to the merits of claim as to right to
possess.
5. The only object of this section is to prevent a
breach of the peace. So a speedy remedy is
provided by a summary proceeding.
6. The magistrate is to promulgate a preliminary
order as contemplated under section 145

43
(i) If he is satisfied that there exists a dispute
of
above nature.
7. The duty of the magistrate is only to declare
and maintain the possession of the party who
is found on inquiry to be in actual possession.
8. There shall be a regular inquiry regarding the
dispute by allowing reasonable opportunities to
both sides to adduce evidence in support of
their respective claims.
9. The provisions of section 145 must be read
with that of section 146 .
10. If the magistrate finally comes to the
conclusion that a particular party is in
possession of the disputed land, he shall
declare his possession and forbid the other
party to interfere with the possession of the
other party.
11. But if the magistrate comes to the
conclusion that
(a) It is a case of emergency, or
(b) None of the parties was in possession of
the disputed land ,or
(c) He is unable to satisfy himself as to which
of the parties was then in such possession
or the subject of dispute, then the
magistrate shall attach the property under
section 146 until the right of the parties

44
are finally determined by the court of
competent jurisdiction.
12. Under section 145 the magistrate has no
power to pass an interim order to give back
possession to any party who claims to have
been dispossessed.
The proceeding under section 145 are
quasi judicial and quasi administrative in
nature. As the Supreme Court has observed in
Chandu AIR 1978 SC 333 ,that 145
proceeding is primarily concerned with the
prevention of the breach of the peace by
declaring the party found in possession to be
entitled to remain in possession until evicted
there from, in due course of law. A proceeding
under section 144 can under certain
circumstances be converted into one under
section 145. The continuance of proceedings
under section 145 for a long time betrays the
basic structure of the proceeding under section
145 being based on apprehension of breach of
peace are basically preventive and not
punitive.
When a dispute exists regarding any
right of user of any land or water, whether
such right is claimed as an easement or
otherwise which is likely to cause breach of the
peace, then the executive magistrate may
initiate a proceeding under section 147.In all
other matters the proceeding under section
147 are same with that's if 145 proceedings.
Magistrate exercising power under 145,146
and 147 may hold local inquiry if necessary.

45
15. First Information Report (FIR) :-
There are several modes for initiating
Criminal cases. Out of which lodging FIR is one. An
information given under section 154 (i) of the code,
regarding commission of any cognizable offence to
the officer- in-charge of the police station is
commonly known as first information report
(popularly known as FIR) .The term FIR has neither
been defined nor used in the code, through it plays
an important role in criminal justice system. FIR is a
very valuable document with regard to criminal
prosecution. As the name suggests, the report
contains information about commission of
cognizable offence and made in the earliest point of
time. It sets the criminal law into motion and marks
the commencement of the investigation of the case
and ends up with the formation of opinion under
section 169 or 170,as the case may be and
forwarding of a police report under section 173 Cr
PC. There can be no second FIR .All information
either made orally or in writing after lodging of FIR
and after investigation has commenced, will be
statements falling under 161 and 162. FIR is not a
substantive piece of evidence and it can only be
used in corroborating the statement of the maker
under section 157, or to contradict it under section
145 of the Evidence Act.
As the Supreme Court has put it in Surjeer
Singh AIR 1962 SC 1389 that, FIR need not be
given by an eye witness. Again the Supreme Court
in State of Haryana Vs. Choudhury Bhajanjal AIR
1992 SC 604 has observed that when any

46
information disclosing cognizable offence is laid
before the officert-in-charge of a police station, he
has no option but to register the case on the basis
thereof.
Section 154 provides for prompt and proper
record of the information. It enjoins the police
officer-in-charge to observe certain duties and
formalities for recording of FIR. The conditions
which are sine queue non for recording a first
information report are :
1. There must be some information.
2. That information must relate to commission
of any cognizable offence.
3. The information may be given either orally
or in writing.
4. Such information must be first (earliest) in
point of time.
5. The information must be given to the
officer- in-charge of a police station.
6. The information so given must be reduced
to Writing by such police officer, and entered in
a book kept in the police station.
7. The information so reduced to writing must
be read over to the informant.
8. The informant then shall be asked to sign
the same.

47
9. A copy of the information as recorded shall
be given forthwith, free of cost, to the
informant.
10. If the officer-in-charge refuses to record
FIR, the aggrieved person may send the
substance of such information (a) in writing, (b)
by post, (c) to the Superintendent of Police
concerned. If the Superintendent of police is
satisfied that such information discloses
commission of cognizable offence, he may
himself investigate the case or direct an
investigation to be made by any police officer.
First information of the commission of a
cognizable offence is enough to constitute a
FIR. Mention of time of commission or in what
circumstance it was committed or who
committed the offence is not essential. These
matters may be ascertained during the
investigation. The commencement of
investigation after FIR is lodged in subject to
two conditions. Firstly the police officer should
have reason to suspect the commission of a
cognizable offence as required by section
157(i). Secondly the police officer should
subjectively satisfy himself as whether there is
sufficient ground on entering on an
investigation even before he starts an
investigation into the facts and circumstances
of the case as contemplated by section 157 (1-
b). A counter information given by the other
party after information has been lodged by one
party comes under section 154 and is not hit

48
by section 162. Information given through
telephone can't be regarded as FIR (1995 Cr
LJ 2744). Mere delay in lodging FIR is not
fatal. Any such delay should be reasonably
explained. As the Supreme Court has
observed FIR is not a piece of substantive
evidence and can be used only for
contradiction or corroboration. (AIR 1973 SC
476).
16. Section 162 and its Legal Significance :
The investigation officer has been
authorized under Section 160 and 161 to
examine persons who are acquainted with the
matter under investigation and to record their
statements. If such statements f witness are
recorded then such statements are subject to
certain statutory restrictions as imposed under
S 162. The provision of section 162 are in fact
continuation of section 161. Provisions of
section 162 lay down specifically the mode in
and the purpose for which the statement may
be used in evidence. The object behind
section 162 is to protect the accused both
against overzealous police officers and
untruthful witness, because statements
recorded under section 161 were made under
circumstances not inspiring confidence.
The provisions of section 162 are legally
significant for following provisions.

49
1. It is not obligatory for the investigating
officer to record statement of witness
examined under section 161
2. If such statements reduced to writing, it shall
not be signed by the maker of the statement.
3. Both the statements made orally and any
resord there of shall not be used for any
purpose except at any inquiry or trial in espect
of any offence under investigation.
4. Such statement shall be used either by the
accused or with the permission of the court by
the prosecution. If person making the
statement is examined as a prosecution
witness.
5. Such statement shall be used only for the
purpose of contradiction that witness under
section 145 of the Indian Evidence Act. (Such
statement cannot be used for corroboration of
prosecution or defence witnesses or for
contradiction of defence witnesses).
6. The provisions of section 27 and 32(i) of
Indian Evidence act are not affected by the
provisions of section 162 Section 32(i) speaks
of dying declaration (statement as to the cause
of his deals and section 27 deals with
information leading to discovery .Statement of
deceased to the police as t the cause of the
cause of his death and statements leading to
discovery, made by the accused to the police
are admissible and section 162 shall not affect
their admissibility.
Section 162 imposes a complete ban on
the use of statements recorded by the police

50
officer under section 161 for the purpose of
corroboration or as substantive evidence.
17. Recording of confession and statement
by magistrate under section-164 :
Section 164 Cr PC. Empowers certain
magistrates to record confession made by accused
and statement made by witnesses. Only two
categories of magistrates are empowered to record
such matters and they are 1. Metropolitan
Magistrate . Or 2. Judicial Magistrate whether they
jurisdiction in the case or not .Such magistrate may
exercise the power under section 164 during the
following period such as (i) in the course of
investigation or (ii) at any time after the
investigation before the commencement of inquiry
or trial.
No police officer on whom an, power of a
magistrate has been conferred shall record
confession under section 164.
Section 164 imposes statutory
obligation on the magistrate before recording
confession under 164 is a solemn act and in
discharging his duties under this section the
magistrate must take care to see that the
requirements of law must be fully satisfied. The
provisions of section 164 is a safety valve against
involuntary confession. At the time of recording
confession under section 164 the magistrate is to
comply with four mandatory statutory requirements.
Those are :

51
1. The magistrate must warm the accused by
explaining to him the gravity of confession.
2. The magistrate must explain to the accused that
he is not bound to make a confession.
3. The magistrate shall also explain to him that if
he makes confession such confession may be used
as evidence against him.
4. The magistrates shall question the accused and
shall not record any such confession unless he has
reason to believe that the confession is being made
voluntarily.
5. Recording of the confession of an accused
person immediately on his production by the police
should be avoided. Ordinarily he should be allowed
a few hours for reflection, so that he shall be free
from the influence of the police before his statement
is recorded.
Non-compliance of the above mandatory
provisions of this section renders it inadmissible in
evidence ( Kenar singh Vs State AIR 1989 SC 683
).It is the duty of the magistrate to exclude the
presence of the police officer from the place when
confession is recorded. The confession shall be
recorded in the manner provided in section 281 for
recording examination of an accused and
confession so recorded shall be signed by the
person making it and the magistrate shall make a
memorandum at the foot of such record to the
following effect.

52
I have explained to the accused that he
is not bound to make a confession , and that if he
does so, any confession he may make may be used
as evidence against him, and i believe that this
confession was voluntarily made. It was taken in my
presence and hearing and was read over to the
person making it and admitted by him to be correct,
and it contains a full and true account of the
statement made by him.
The magistrate shall sign this memorandum.
Sub-section 5 of section 164 provides the
mode of recording statement of witness
after administering oath to the person.
Statement of each and every person can
not be recorded under section 164 . The
Supreme Court in Jogendra Nahak Vs
State of Orissa 1999(17) O.C.R (SC) 342
has held that unless the person is
sponsored by the investigating officer, his
statement shall not be recorded by the
magistrate under section 164.
Whether it is confession or statement, if
recorded under section 164, such
statements can never be used as
substantive evidence of truth of the facts
stated but the same may be used for
contradiction or corroboration of the
witness, who made it. Confession or
statement recorded by a magistrate who is
not empowered under section 164 Cr PC is
inadmissible in evidence . Such a basic

53
defect cannot be cured by section
463.Confession or statement so recorded
under section 164 should not be made over
to the police but sent directly to the
magistrate who is to inquire or try the case.
18. Jurisdiction of criminal Courts :
Jurisdiction means authority of the court
to entertain and try cases. So jurisdiction
plays a significant role in any litigation
whether it is civil or criminal. The first
thing that is to be seen in a cases is
jurisdiction of the court. The Supreme
Court is of the view that the proceedings
taken in a wrong court or at a wrong place
would not vitiate the trial unless it
occasions the failure of justice (Mangal
Das Vs State of Maharasthra AIR 1966
SC 128. In the matter of jurisdiction the
Criminal Procedure Code has adopted
the common law principle of England that
all crimes area local and justiciable by
local courts within whose jurisdiction they
are committed. However the Code has
also added certain exceptions to the
above common law principle.
The competency of a court to take
cognizance of an offence and its inquiry
and trial are determined by the place in
which the offence is alleged to have been
committed. The crimes in their nature
local and jurisdiction of criminal courts is
also local. But this law few exceptions

54
which have been enumerated under
different sections of the code , such as :
1. a) When it is uncetain in which of several
local areas on offence is committed ,or
b) Where an offence is committed partly in
one local area and partly in another, or
c) Where an offence is a continuing one,
and continues to be committed in more
local areas than , or
d) Where an offence consists of several
acts, done in different local areas.
Such offence may be inquired into or tried
by any court having jurisdiction over any
such local areas.
2. Where an offence is committed at one
place and consequence of which has
ensured in another area that offence is
committed or consequence has ensued.
3. In case of dacoity such offence may be
inquired into or tried by a court in whose
local jurisdiction such offence was
committed or the accused was found.
4. Offence of kidnapping and abduction
may be inquired into or tried by a court
within whose local jurisdiction the person
was kidnapped or abducted or was
conveyed or cancelled.

55
19. TO Take Cognizance of offence
(Section-190)
The provisions of Section 190
provides the conditions requisite for taking
cognizance of any offence, but the
expression to take cognizance has not
been defined. Taking cognizance means
judicial application of mind by the
magistrate to the facls mentioned in the
complaint foe taking further acation.
Cognizance can be said to have been taken
when the magistrate applies his mind for
proceeding under Section 200 (AIR 1976
SC1672). Whether cognizance has been
taken by the magistrate or not is a question
of fact to be determined in each case.
Section 190 provides that
magistrate first class or magistrate second
class, if specially empowered in this behalf
may take cognizance of any offence in 4
ways. Those are :-
1. Upon a complaint or
2. Upon a Police report or
3. Upon any information received form
any person ,or
4. Upon his own knowledge regarding
commission of an offence.

56
Literally taking cognizance means to
take notice of an allegation of commission
of offence with a view to taking some kind
of action provided in the code to bring the
offender to justice. The Supreme Court has
held that when a magistrate on receiving a
complaint applies his mind for proceeding
under section 200 to 203 he is said to have
taken cognizance of the offence within the
meaning of section 190(1)(a). If the
magistrate takes action of some other kind
such as issuing a search warrant, or
ordering investigation by the police under
section 153(3), he cannot be said to have
taken cognizance of any offence (D.
Laxminarayan Vs. Narayan AIR 1976 SC
1672).
From the above observation of the
Supreme Court when magistrate judicially
applies his mind to the facts of the case for
the purpose of issuing summons against
the accused persons, or dismissing the
complaint the magistrate is said to have
taken cognizance of offence.
The Magistrate can before taking
cognizance of an offence ask for
investigation or he can issue warrant for
production but if after taking cognizance,
the magistrate wants any investigation, then
he should proceed under Section 200. He
should before taking cognizance examine
the facts of the complaint and determine

57
whether his power is barred by under any
other provisions, such as Section 195(1).
Ordinarily cognizance taking
power has not been extended to the court
of Session, because court of Session is not
considered as a Court of original
jurisdiction, but a Court of Session can take
cognizance of one offence, That is
defamation committed against the president
or Vice-president of India Governor of a
State or Minister of union or State, Or any
other public servant in respect of his
conduct in the discharge of his public
functions, but such complaint must be made
in writing by the public prosecutor within 6
months form the alleged offence with
previous sanction of the State Government.
Power of taking cognizance as
provided under section 190 is subject to
certain statutory restriction. Such
restrictions are -
No court shall take cognizance of any
offence or its, abetment or attempt or any
criminal conspiracy.
1. If the offence is punishable under Section
172 to 188 (Contempt of lawful authority
of public servant) except on complaint in
writing of the public servant concerned or
his superior officer).
2. Offence of giving false evidence or
committing forgery in a court proceeding,

58
the complaint must come in writing from
that court or from a court to which it is
subordinate.
3. Without previous sanction of the
Government or without consent of the
Government or the District Magistrate in
respect of any offence committed against
the state under Section 153-A,295-A,
505,153-B, or 120-B.
4. If the accused is or was a judge,
magistrate or public servant not removable
form his office or any member of armed
forces acting in his official capacity without
previous sanction of the Government
.
5. If the offence committed against a
marriage punishable under Chapter 20 IPC
(Section 493 to 498), unless the complaint
is made either by the person aggrieved, or
by some other person with leave of the
court.
6. If the offence punishable under Section
497 ,498, unless a complaint is filed by the
husband.
Power of taking cognizance of the above
courts is always subject to the above
statutory restrictions.
20. Sanction :
Sections 196,197 and 199 refer to
previous sanction “No court shall take

59
cognizance of any offence, if previous
sanction is pre-requisite for it.
Sanction means permission, to prosecute a
particular public servant. The sanction is to
be given by the appropriate Government.
So a sanction is an order directing the
prosecution of a certain person and in the
ordinary way that order is conveyed to the
authorities who are responsible for initiating
prosecution in question.
For reasons of public policy, the power of
granting sanction has been reserved to the
Government to determine whether offences
committed by public servants while
discharging their official duties should be
taken cognizance of Cognizance can be
taken if sanction is issued by the
Government. The object is to prevent
unauthorized persons from preferring false,
vexatious and un-authorized complains
against public servants. There is an
absolute bar against taking cognizance
without sanction. When sanction is pre-
requisite for taking cognizance of an
offence, that provision is imperative and
must be strictly complied with.
A sanction order to be valid must
show on it, that the sanctioning authority
accorded the sanction after applying his
mind to the materials appearing against the
accused. Sanction should be expressed
with sufficient particularity and strict
adherence to the language of this Section.

60
Sanction constitutes a condition precedent
to prosecute certain public servants and
confers jurisdiction on the court. Sanction
given after filing of prosecution does not
validate proceedings. The Government may
before according sanction hold a pre-
liminary investigation into the matter as per
Section 196 (3). AS the Supreme Court has
observed that to necessitate sanction there
must be a reasonable connection
between the act and the discharge of official
duty the act must bear such relation to the
duty that, he could lay a reasonable but not
a pretended or fanciful claim, that he did it
in the course of the performance of his duty.
It does not matter if the acts were strictly
necessary for the discharge of his duty
.What has to be found out is whether the
act and the official duty were so
interrelated that one could postulate
reasonably that it was done by the accused
in the performance of official duty, though
possibly in excess of the needs and
requirement of the situation. (Prabhakar
AIR 1990 SC 686 and AIR 1956 SC 44)
Sanction is a protection intended for public
servants. In matter of sanction whether it is
required or not, it is the quality of the act
that is important and if it falls within the
scope and range of his official duties
protection of sanction shall be attracted.
(S.B Saha AIR 1979 SC 1841).

61
The guiding principles with regard to
necessity of sanction as deducible form
authoritative decisions are -
1) The question of sanction arises only in
the case of public servants removable by
the government.
2) When a public servants charged with
an offence. Whether sanction or is not
necessary must be determined with
reference to the allegation in the complaint,
not the defence that may be put forward.
3) A public servant can only be said to act
or to purport to act in the discharge of his
official duty, if his act is such as to lie within
the scope of his official duty.
4) A good test will be whether the public
servant if challenged can reasonably claim
that what he does, he dies in virtue of his
office.
5) An offence arising out of the abuse of
official position by an act not purporting to
be official, doesn't require sanction. The act
of cheating , acceptance of bribe or
abetment thereof doesn't require sanction.
A public servant is protected under
the umbrella of sanction not only during his
service but also after his retirement or
removal from office. If the offence is
committed while in service, sanction is

62
necessary. Cognizance without sanction is
illegal. No particular form of sanction is
prescribed. Sanction must be definite and
sanction order should disclose that the
authority considered the relevant material
before granting sanction.
Sanction is an executive act. It is
the discretion of the Government whether it
is to grant sanction or not.
21. Petty Offences:-
The court are created to decide
cases and to give justice to the people and
that too promptly. But there is a constant
problem in India.
In comparison with number of courts, the
number of cases are many, as a result of
which a large number of cases are pending
for disposal, and such disposal of cases
takes naturally a long time. It is said that
justice delayed justice denied. Besides that
unnecessary protraction of cases causes
inevitable inconvenience to the litigant
public. So court, Government and people all
face this problem. With a view to minimize
the work load of cases and to avoid
unnecessary inconvenience to the litigant
public. And to foster quick disposal of
cases, section 206 had been introduced in
the code. The significance of Section 206 is
twofold.
1) It defines petty offences and

63
2) It permits the accused to plead guilty in
absentia in case of petty offences.
The legislative intent is that cases
involving petty offences can be disposed of
finally if the accused exercises his option by
pleading guilty to the charge in petty
offence. This provision in effect saves the
valuable time of a court and protects the
accused form litigation oriented
harassment.
Under the provisions of
section206 magistrate raking cognizance of
petty offences which may be summarily
disposed of under section 260 shall issue
summons to the accused, requiring him to
the following things.
(a) Either to appear in person or (b)
to appear, or (c) To play guilty by post, or
(d) Transmit his plea of guilt by messenger
to the magistrate along with the amount of
fine specified in the summon which shall be
imposed on him. Such amount of fine shall
not exceed 1000 rupees.(One Thousand
rupees) only.
This procedure is only to be adopted
in matter of petty offences. Petty offence
has been defined in the section. According
to the definition petty offence means any
offence punishable with fine not exceeding
1000 rupees. However, the definition is not
complete. The State Government may by

64
notification empower any magistrate to
exercise the powers under Section 206 in
relation to :
(a) any offence which is
compoundable under Section 320,or (b) any
offence punishable with imprisonment for a
term not exceeding 3 months or with fine or
with both ,but the magistrate must be of the
opinion that having regard to facts and
circumstances of the case, the imposition of
fine only would meet the ends of justice.
The whole idea behind the provisions
of section 206 is to foster quick disposal of
cases which are numerous in number but
petty in nature.
22. Charge and its contents :
The necessity of system of written
accusation specify a definite criminal
offence is the essence of criminal justice
system. In order to convict a person of any
offence, all the material facts which
constitute it must be stated in the charge
and satisfied on evidence. A charge is a
written notice of the precise and specific
accusation against the accused which he is
required to meet. Charge is the first notice
to the accused about the accusation and so
it must convey to him with sufficient clarity
and certainty that the prosecution intends to
prove against him and of which he would
have to clear himself. The object behind

65
charge is to warn the accused the about
case he is to answer. Charge enables the
accused to know the case he will have to
meet and to be ready before evidence is
given.
Section 211 to 224 deal with charge. The
sum and substance of the law relating to
charge may be given below.
1. Charge must be written and must contain
with clarity and certainty the offence with
which the accused in charged. That
means name of the offence, the law and
Section of the offence, particulars as to
the time and place of the offence, manner
of committing such offence must clearly
mentioned in the charge. The fact of
previous conviction conviction if any has
also to be mentioned in it.
2. For every distinct offence a) there shall
be a separate charge, and b) every such
charge shall be tried separately.
With regard to the point no 2(b) there
are certain exceptions. That means
separate trials may not be held for each
distinct and separate charge in the following
cases. Such exceptional cases are -
i. If the accused in writing sibmits to the court
to be tried together for all or any number of
charges framed against him and the
magistrate is of the opinion that the accused

66
is no likely to be prejudiced by such joint
trial, there shall be one trial.
ii. When a person is accused of more offences
than one of the same kind committed within
the space of 12 months he may be tried at
one trial for any number of offences not
exceeding 3. It may be mentioned here that
offences of same kind means offences
punishable with same amount of punishment
coming under the same Section of the penal
law including the attempt to commit it.
iii. If in one series of acts so connected
together as to form th same transaction,
more offences than one are committed by
the same person, he may be charged with or
tried at one trial. For example where the
accused committed 5 murder in one house
and a fourth a little later in a different house
he could be charged and tried at one trial
because such successive murder did not
constitute distinct offences.
iv. If the acts alleged to constitute an offence
faling within two or more separate definitions
of any penal law the person may be charged
and tried at one trial. For example, separate
charges of kidnapping and abduction or
charge under section 317 exposure of child
likely to cause his death and 304 culpable
homicide may be charged separately, but
tried at one trial.

67
v. If several acts of which one or more than one
would by itself or themselves constitute an
offence constitute when combined different
offences. For example the acts of setting fire
to different offices of the Government and
looting were a series of incidents to make the
cotinuing offence of waging war may be tried
at one trial.
vi. Where it is doubtful as to what offence has
been committed, the accused may be
charged with for theft and receiving stolen
property alternatively and may tried at one
trial.
Different persons may be charged
and tried at one trial such persons are (a)
persons committing same offence in course of
same transaction, b) persons accused of
offence and accused of abetment of or attempt
to commit , (c) persons committing offences of
same kind whthin a period of 12 months, d)
Persons committing different offences in the
course of same transaction, e) Persons accused
of committing offences like theft, extortion,
cheating or criminal misappropriation and
persons receiving, retaining, concealing or
assisting in disposal of the above property and
persons committing abetment or attempt, (f)
Persons accused of committing offences under
Section 411,414 relating to stolen property and
its transfer and (g) All persons committing
offences punishable under chapter XII,IPC

68
relating to counterfeit coin including its abetment
and attempt.
Law relating to charge as discussed above
includes 2 things those are joiner of charges in
one trial, and joiner of persons charged jointly in
one trial. The joint trial s held for the
convenience of both the prosecution and the
defence. If such joint trial is prejudicial to the
accused the same is to be avoided. Charge
once framed can be altered at any time. Any
error in stating the offence or particulars of the
offence or any omission is not fatal to the case
unless the accused is prejudicial and it has
occasioned a failure of justice. Accused charged
with graver offence may be convicted of the
minor offence or attempt to commit although he
is not charged with it provided the minor offence
is a cognate offence, of the graver offence.
The principles governing jurisdiction of
criminal courts may be explained in a tabular
form :
Offence committed Tribal by the court within
whose local Jurisdiction
1. Dacoity
2. Kidnapping or
abduction.
3. Theft, extortion or
robbery.
1. The offence committed or
the accused is found
2. Person kidnapped or
adducted or conveyed or
concealed or detained.
3. Offence committed or
stolen property was
possessed or received or

69
4. Criminal mis-
appropriation or criminal
breach of trust
5. Possession of stolen
property .
6. Cheating by letters or
tele-communications
7. Offences of bigamy
under section 494,495 .
8. Offence committed in
course of journey or
voyage.
9. Offences charged under
section 219,220,221,or
223.
10. Offence committed
partly in one local area
partly in another.
11. Any other offence.
retained.
4. Offence committed or any
part the property was
received, retained or
required to be returned or
accounted for.
was possessed by any
person.
6. letters or messages sent
or received or the property
was delivered or was
received.
offender last resided with his
or her spouse by the first
marriage.
8. Through or into whose
local jurisdiction that person
or thing passed.
9. Any offence is committed.
10. Where the accused may
be found.
consequence of which
ensued.
12. Partly committed.
13. Place of commission.
14. Any of the acts done.

70
23. Trials :-
Trials is the final stage of a criminal
proceeding. There are 4 types of trials. such
as :
1. Trial before a court of session ;
2. Trial of warrant cases by magistrate ;
3. Trial of summons cases by magistrate
and
4. Summary trial.
Offences exclusively triable by court of
Session shall be tried before a court of
session. Court of session means and
includes 3 types of courts, such as -
Courts of Session may be presided by
i. A Sessions Judge.
ii. Additional Sessions Judge.
iii. Assistance Sessions Judge.
A trial before a court of session is to
pass through different stages. Procedure to
be followed in such trials are enumerted
below one after another.
12. Offence committed
partly in one local area
partly in another.
13. Continuing offences.
14. Offence consisting of
several acts.

71
1. Every Sessions trial shall be conducted
by a public prosecutor.
2. After the appearance of the accused in
pursuance of a commitment of the case, the
public prosecutor shall open his case by
describing the charge and by stating the
proposed evidence.
3. For the purpose of framing of charge,
the session judge shall consider the record
and hear the submissions of the accused
and the prosecution. If there is not sufficient
ground for proceeding against the accused
the judge shall discharge the accused with
reasons.
4.If there is ground for presuming that the
accused has committed an offence,
exclusively triable by the court of Session
he shall frame charge accordingly, but if
the offence to be charged is not exclusively
friable by the court of session, the judge
may frame charge and transfer the case for
trial to the Chief Judicial Magistrate.
5. Charge so framed shall be read over
and explained to the accused and the
accused shall be asked whether he pleads
guilty, of the offence, or claims to be tried.
6. If the accused pleads guilty, the judge
shall record the plea and may convict him
there on.

72
7. If the accused refuses to plead or does
not plead or claims to be tried or is not
convicted on his plea of guilt, the judge
shall fix a date for examination of
prosecution witnesses, and prosecution
witnesses shall be summoned.
8. On the date so fixed the judge shall
proceed de die in diem to take all such
evidence as may be produced by the
prosecution and such witnesses shall be
cross, examined by the defence.
9. After the completion of the evidence of
the prosecution witnesses, the judge shall
examine the accused personally to enable
him to explain any circumstances appearing
in the evidence against him.
10. The judge shall hear both sides and if
he considers that there is no evidence that
the accused committed the offence he shall
acquit the accused.
11. If the accused is not acquitted the
judge shall call upon the accused to enter
upon his defence and to adduce defence
evidence in support of his case, the court
shall issue processes to such witnesses.
12. On the date so fixed the judge shall
record the evidence of witnesses for the
defence.

73
13. There after the public procecuter will
first sum up his case and then the lawyer
for accused shall give his reply.
14. The judge shall deliver the judgment in
the case either acquitting the accused or
convicting him.
15. If the accused is convicted two courses
are open to the judge. The judge may
release the accused on probation under
section 360 Cr P.C or the judge shall hear
the accused on the question of sentence.
16. If there is charge of previous conviction
against the accused and the accused does
not admit such previous conviction, the
judge shall take evidence in proof of such
previous conviction and shall pass the
sentence on the accused accordingly.
17. If it a case cognizance of which has
been taken under section 199(2) Cr PC the
judge shall try the case by following the
procedure for trial of warrant cases.
The remarkable features of a Sessions trial
are -
i) The prosecution of the case is to be
conducted by the public prosecutor.
ii) The prosecution and defence get 3
chances to advance argument in the case,
such as one at the time of

74
(i) framing of the charge
(ii) examination of defence witnesses,
and
(iii) examination of the accused.
iii) The sessions trial broadly passes
through 3 stages of hearing, first stage upto
framing of the charge. Second stage taking
evidence of the prosecution and
examination of the accused,and third and
last stage is taking defence evidence and
hearing the accused on question.
24. Trial of warrant Cases :-
Criminal cases are divided into two
broad categories, Such as 1. Summons
case and 2. warrant case.
Warrant case means a case relating to an
offence punishable with either i) death, ii)
imprisonment for life, or iii) improsonment
for a term exceeding 2 years. All other
cases fall within the category of summons
case, Warrant cases are divided into two
groups. Such as (i) A warrant case
instituted on a police report and ii) Warrant
case instituted otherwise than on a police
report.
Separate procedures have been
provided for trial of the above two kinds of
warrant cases.

75
A. Trial of warrant cases instituted on
police report (Sections 238 to 243 & 248) .
1. At commencement of trial the magistrate
shall satsfy himself that copis of
documents Referred to under section
207 have already been delivered to the
accused. If not he should cause them to
be furnished to the accused.
2. The magistrate shall consider the
charge against the accused. If the charge is
groundless, the magistrate shall discharge
the accused. If there is ground for
presuming the accused to have committed
the offence and the magistrate is competent
to try the offence and punish adequately,
then he shall frame chafge against the
accused in writing.
3. The charge so framed shall be read
over and explained to the accused and shall
be asked whether he pleads guilty, if the
accused pleads guilty to the charge the
magistrate may convict him.
4. If the accused does not plead guilty or
refuse to plead or claims to be tried or the
magistrate does not convict the accused on
his plea of guilt, the magistrate shall fix a
date for examination of the prosecution
witnesses and witnesses shall be
summoned.
5. On the date so fixed the magistrate
shall proceed to record evidence of

76
prosecution witnesses followed by their
cross examination.
6. After the closure of prosecution
evidence the magistrate shall examine the
accused, personally to enable him to
explain the circumstances appearing in
evidence against him and the accused shall
be called upon to enter upen his defence,
and to produce evidence in support of his
defence. The witnesses for the defence
shall be summoned.
7. After completion of the defence
evidence if any the magistrate if finds the
accused not guilty, he shall record an order
of acquittal.
8. If the magistrate finds the accused
guilty and convicts him accordingly then, 3
courses are open for him, such as :
i. The magistrate may proceed under
Section 325 (when magistrate is of
opinion that the accused ought to
receive severe punishment but he
cannot pass such sentence, or if the
magistrate is of the second class and
he has no power to ask the accused to
execute a bond under section 106 the
magistrate shall forward the accused to
the Chief Judicial Magistrate for
necessary action) or

77
ii. The magistrate may release, the
accused on probation under Section
360 ,or
iii. The magistrate may impose sentence
of punishment on the accused. If the
magistrate does not proceed either
under Section 325 or 360, he shall hear
the accused on the question of
sentence.
9. If there is charge of previous conviction
against the accused, and the accused
does not admit such previous conviction,
then the magistrate shall take evidence in
proof of such previous conviction, then
the magistrate shall take evidence in
proof of such previous conviction and
shall punish the accused accordingly.
10. If the accused is sentenced to
imprisonment a copy of the judgment shall
be given immediately to the accused free of
cost as per Section 363.
B. Trial of Warrant cases instituted
otherwise than on police report (Section
244-249)
1) After the accused appears or is brought
before a magistrate, the magistrate shall
proceed to hear the prosecution and to take
all such evidence as may be produced by
the prosecution followed by cross-
examination, if any. Such witnesses may be
summoned by the court.

78
2) The magistrate shall consider the
above evidence of the prosecution and if he
is of the opinion that no case against the
accused has been made out the magistrate
shall discharge the accused.
3) If the magistrate is of the opinion that
there is gourd for presuming that the
accused has committed an offence and he
is competent to try the offence and to
punish the accused adequately the
magistrate shall frame charge against the
accused.
4) The charge so framed shall be read
over and explained to the accused and the
accused shall be asked whether he pleads
guilty to the charge.
5) If the accused pleads guilty the
magistrate shall record the plea and may
convict him thereon.
6) If the accused refuses to plead or does
not plead or claims to be tried or if the
accused is not convicted upon his plea of
guilt, a date shall be fixed for cross-
examination of the witnesses already
examined before framing of the charge.
After cross-examination of the previous
witnesses, the evidence of remaining
witnesses for the prosecution shall be
taken.

79
7) The accused shall be examined
personally to enable him to explain the
circumstances appearing in evidence
against him.
8) The accused shall be called upon to
enter upon his defence. To produce
defence evidence if any such witnesses
may be summoned.
9) After considering the evidence and
hearing the argument of both sides, if the
magistrate finds the accused not guilty he
shall record an order of acquittal.
10) If the magistrate finds the accused
guilty and convicts him 3 courses are open
to the Magistrate, Such as-
i) The magistrate may proceed under
section 325 (when magistrate is of opinion
that the accused ought to receive severe
punishment but he cannot pass such
sentence, or if the magistrate is of the
second class, and he no power to ask the
accused to execute a bond under
section106, the magistrate shall forward the
accused to the Chief Judicial Magistrate for
necessary action )or,
ii) The magistrate may release the
accused
on probation under Section 360,
or
iii) The magistrate may impose
sentence of punishment on the accused. If

80
the magistrate does not proceed under
Sections 325or 360, he shall hear the
accused on the question of sentence.
11) If there is charge of previous conviction
against the accused and the accused does
not admit such previous conviction then the
magistrate shall take evidence in proof of
such previous conviction and shall punish
the accused accordingly.
12) If the accused is sentenced to
imprisonment, a copy of the judgment shall
be given immediately to the accused free of
cost as per section 363.
13) On any date of hearing if the
complainant is absent and the offence is
non-cognizable or may be lawfully
compounded the magistrate may discharge
the accused before framing of the charge.
14) The magistrate has power to order
compensation, if the magistrate is of the
opinion that there is no reasonable ground
for making the accusation against the
accused, but no such order for
compensation shall be passed without
serving show cause notice on the
complainant.
25. Trial of Summons cases :-
1. In trial of summons case it shall not be
necessary to frame a formal charge. Only

81
the particulars of the offence of which he
is accused shall be stated to him by the
magistrate and the accused shall be
asked whether he pleads guilty or has
any defence to make.
2. If the accused pleads guilty the
magistrate shall record the plea and the
magistrate may convict him thereon.
3. If it is a case coming under Section
206 Cr PC regarding petty cases and the
accused desires to plead guilty to the
charge, the accused shall transmit to the
magistrate either by post or by messenger a
letter containing his plea and also the
amount of fine specified in the summons.
Even the pleader authorised by the accused
may plead guilty on behalf of the accused.
In such case the magistrate may convict the
accused and sentence him to pay fine.
4. If the accused is not convicted as
stated above the magistrate shall
(a) hear the prosecution, (b) take all
such evidence as may be produced by the
prosecution,(c) hear accused and (d) take
all such evidence produced by the defence.
Magistrate may issue summons to the
witnesses.
5. After taking all such evidence if the
magistrate finds the accused not guilty, he
shall record an order of acquittal.

82
6. If the magistrate finds the accused
guilty 3 courses are open to the magistrate.
i) he may proceed under section 325 (
when magistrate cannot pass sentence
sufficiently sever, he may suit the
proceeding to the chief judicial magistrate).
ii) he may proceed under section 360 by
releasing the convict on probation or
iii) he may pass sentence upon him.
7. If the complainment does not appear in
the case the magistrate shall acquit the
accused. If the complainment is
represented by a pleader and magistrate is
of the opinion that the personal attendance
of the complainment is not necessary, the
magistrate may not acquit the accused.
8. The magistrate may permit the
complainant to withdraw his complaint
either against all or any of the accused, and
there upon acquit the accused.
9. If a summon case is instituted
otherwise than upon complaint magistrate
first class or with the previous sanction of
the Chief Judicial magistrate any other
judicial magistrate may stop proceeding of
any stage. If evidence of principal witnesses
has already been recorded, the magistrate
shall pronounce a judgement of acquittal
and in any other case shall release the
accused. Such release shall have the effect
of discharge.

83
10. The magistrate may convert the
summon trial in to a trial of warrant cases in
interest of justice, if the summons case
relates to an offence punishable with
imprisonment for a term exceeding 6
months.
26. Summary Trial :-
Summary trial is a speedy trial in
which unnecessary formalities have been
dispensed with. The trial is to be shortened
or simplified by having recourse to certain
provisions in matter of
i) preparation of record ,
ii) Recording of evidence,
iii) Judgment ,end
iv) The sentencing power with regard to
imprisonment has also been limited to 3
months. The right of appeal in summary
trial is also abridged.
Summary trial may be held by the following
magistrates.
1)Chief Judicial Magistrate or 2)
Metropolitan Magistrate, or 3)
Magistrate first class if specially
empowered to that effect.
The following offences may be tried
summarily. Such offences are
1) Offences not punishable a) with death, b)
imprisonment for life or c) imprisonment for
a term exceeding 2 years.

84
2) Offence of theft, receiving retaining or
assisting in the concealment or disposal of
stolen property where the value of such
property does not exceed 2000(two
thousand) rupees.
3) Offence like lurking house trespass,
house breaking (Section 454 and 456 )
insult with intent to provoke a breach of
peace (section 504), Criminal intimidation
(section 506,IPC) and Abetment of and
attempt to commit any of the foregoing
offences.
4) Offence under section 20 of the Cattle
trespass Act.
Summary trial may be converted into
any other regular trial. Magistrate Second
class may try summarily any offence which
is punishable only with or with imprisonment
for a term not exceeding 6 months, if
specially empowered in this behalf by the
High Court.
In summary trial, the Magistrate shall
record i) the substance of the evidence and
shall pronounce judgement containing a
brief statement of the reasons of the
findings.
The record of the summary trial shall
contain only the serial number of the case,
date of commission of the offence date of
complaint, name and address of the
complainant, nature of the offence and
value of the property in respect of which the

85
offence is committed ,plea of the accused,
findings sentence and date of disposal of
the case.
In summary trial the maximum period
of imprisonment that may be awarded is 3
months. An accused convicted of more than
one offence can not be sentenced for more
than 3 months imprisonment in the
aggregate 3 months imprisonment can be
inflicted on each charge to run concurrently
but not consecutively. The limit of 3 months
only applies to substantive sentence of
imprisonment and not to alternative
sentence in default of payment of fine.
27. Res-Judicata in Criminal Law :-
The Section 300 is based on the
principle that no man's life or liberty shall be
twice put in jeopardy for the same offence
on the same set of facts. (AIR 1966 SC 64).
There are certain principles and maxims on
the subject. There is a well known principle
known as res-judicata in Civil law.
According to res-judicata, Suit or issue once
decided by a court of competent jurisdiction
cannot be re-agitated. Res- judicata bars
subsequent litigations on the same matter.
There is a maxim, Nemo debet lix vexari
proeadem causa, which means no person
should be twice disturbed for the same
cause. The Section 300 also embodies
within its narrow limits the principles of the

86
English common law pleas autrefois acquit,
autrefois convict, which means already
acquitted already convicted. That means if
an accused has already been acquitted or
convicted in any previous trial by a court of
competent jurisdiction, he cannot be tried
again for the same offence, Besides all
these principles there is Article 20,clause
(2) of the constitution which reads, no
person shall be prosecuted and punished
for the same offence more than once. This
constitutional provision is known as bar
against double jeopardy. All these principles
and maxims unanimously suggest one
thing that an accused once acquitted or
convicted of any offence by a court of
competent jurisdiction shall not be tried
again for the same offence or based on
same facts.
Section 300 corresponds the gist of
above principles of res-judicata. In order to
attract the main provisions of section 300
the following ingredients must be there :-
1. An accused must have been previously
tried in a criminal case regarding any
offence or though not actually tried but
could have been tried for such offence, or
might have been convicted for that.
2. That trial must have been held by a
Court of competent jurisdiction.

87
3. In that trial the accused must have
been either convicted or acquitted of such
offence.
4. That, conviction or acquittal must be in
force.
If the above ingredients are present then
he accused can not be subject to a second
trial for such offence or for any other
offence based on the same facts.
However, the above general principle
of res-judicata in criminal trial has a few
exceptions. Such exceptions are :-
a) A person either acquitted or convicted of
any offence may be tried again with the
consent of the State Government for distinct
offence for which a separate charge might
have been framed against him at the former
trial under section 220, clause (1).
(b) If a person is convicted of any offence
but subsequently the consequence takes
place constituting a different offence the
accused may be afterwards tried again for
the consequence provided the
consequence did not happen or were not
known to the when judgment was
pronounced. For example, the accused is
convicted for voluntarily causing hurt, but
the injured subsequently died of the injury,
than the accused shall be tried again for
causing murder.

88
(c)An accused already tried for an offence
can be tried again for another offence
arising out of the same facts where the
former court was not competent to try the
offence subsequently charged. For
example, A is charged and convicted by a
Magistrate second class of theft of property.
A may subsequently be tried for robbery on
the same facts.
(d) If a person is discharged under Section
258, shall be tried again for the same
offence with the consent of the court.
(e) Section 26 of the General Clauses Act
provides that “where an act or omission
constitutes an offence under two or more
enactments, then the offender shall be
liable to be prosecuted and punished under
either of any of those enactments, but shall
not be liable to be punished twice for the
same offence”. That means under Section
26 of the General Clauses Act, a person
can't be convicted twice, but can be
prosecuted twice. There is no bar for double
prosecution (AIR 1957 SC 592). For
example, if the former trial ends in acquittal,
there is no bar to convict the accused at the
second trial.
f) If a citizen of India commits an offence
outside India, or a foreigner commits an
offence on the high sea or on any Indian
ship and was tried outside India, such

89
person with the previous sanction of the
Central Government may be tried again at
any place in India, under Section 188 Cr.
PC.
(g) If a complaint is dismissed or the
accused is discharged, such accused may
be tried in a fresh trial as the dismissal of
complaint or discharge of accused is not an
acquittal. Even though the order is not set
aside, fresh trial is not barred.
In view of the above, discussion the
principles of res-judicata is applicable to
subsequent criminal trial but subject to the
above exceptions.
But it must be mentioned here that
Section 300 does not apply to proceedings
under Section 107 or 110 Cr. PC. as there
is no trial for any offence. Departmental
inquiry against Government servant on
same facts after acquittal by court is not
barred. An acquittal form an offence of theft
would not prevent a civil action for the
return of the things stolen or for their value
upon the same evidence. The fact that
matter in issue has already been decided in
a civil litigation between the parties is no
bar to the criminal court form taking
cognizance. Appeal against acquittal is not
barred by Session 300 (1991) ISCC 519 .
28. Tender of Pardon : (Section 306- 308)

90
The provisions of Section 306 to
308 deal will tender of pardon to
accomplice, and related matters. The code
has neither defined “pardon” nor the term
“accomplice”. The term “pardon” means to
excuse to forgive or to allow to go
unpunished. The term “accomplice” means
an associate crime or a co-accused. So the
expression tender of pardon to an
accomplice means to grant forgiveness to
an co-accused so that he will go
unpunished.
Though the Sections 300 and 307
deals with tender of pardon to an
accomplice but the law is silent as to at
whose instance the matter of tendering
pardon will be initiated. The Supreme Court
in Jasbeer Singh Vs. Vipin kumar Jaggi AIR
2001 SC2734, has pointed out although the
power to actually grant the pardon is vested
in the Court, obviously the court can have
no interested whatso ever in the out some,
nor can it decide for the prosecution
whether particular evidence is required or
not to ensure the conviction of the accused.
That is the prosecutions job .If the
prosecution thinks that the tender of pardon
will be in the interest of a successful
prosecution of the other offenders whose
conviction is not easy without the approver's
testimony, the court will indubitably agree to
the tendering of pardon. The court must not

91
take on itself the task of determination of
propriety of tendering pardon”.
Form the above observation it is
clear that the matter f tendering pardon will
be initiated by the prosecution. However,
there is no legal bar for an accused to apply
for grant of pardon under section 306 or
307.
The legislative intent behind the
provisions of tendering pardon is to allow
pardon to be tendered in a case where a
grave offence is alleged to have been
committed by several persons, so that with
the aid of the evidence of the person
pardoned the offence could be brought
home to the rest of the accused. (AIR 1963
SC1850).
Tender of pardon may be granted either
under Section 306 or 307 if the following
conditions are there' such as-
1) A criminal case must be pending
against several accused persons.
2) Sufficient evidence is not forthcoming
in the case to prove the guilt of the
accused.
3) Out of the several accused persons
either one or a few shall be given the legal
temptation of pardon so that they may come
forward to speak the truth as to how the

92
offence was committed by them. Criminals
by nature try to avoid detection and desire
to keep matters secret. The persons
involved in criminal in criminal activities in
as many way as human ingenuity can
device. That is why a legal temptation of
pardon is tendered to some of the accused.
So that they may co-operate with the
prosecution by disclosing the truth of their
complicity.
4) Five types of courts or Magistrates are
empowered to tender pardon . They are :
a) Cheif Juducial During investigation
Magistrate : inquiry or trial
kdfgjgjgjgjkgdfghjdfhddof the offence.
b) MetripolitanMagistarate :
c) Magistrate first class During inquiry
inquiring in to or trying and ftrial.
the offence :
d) Court of Session, or: At any time after
. Commitment of the
cause but
e) Court of Special judge :before judgment is
passed.
5) Tender of pardon only can be given in the
following offence-
a) Any offence triable exclusively by Court of
Session.
b) Any offence trible excusively by the court of a
Special Judge appointed.

93
c) Any offence punishable With imprisonment
which may extend to 7 years or with more severe
punishment.
6) Every Magistrate while tendering a pardon (a)
shall record his reasons for why the pardon is
tendered, and (b) Whether the tender of pardon
was accepted by the accused to whom it was
made.
7) Such accused shall be furnished with a copy of
such record free of cost.
8) Every person accepting a tender of pardon shall
be examined as a witness in the court of the
Magistrate taking cognizance of the offence and
also in the subsequent.
9) The person accepting the tender of pardon shall
be detained in the custody until the terminate of the
trial unless he is already on bail.
10) Where the person after accepting a tender of
pardon has been examined as mentioned under
point no.8 , the Magistrate shall commit the case to
the appropriate Court for trial.
11) Tender of pardon is always made on condition.
Such condition is that he (accomplice) should make
(a) full and true disclosure of , (b) of the whole of
the circumstances, (c) within his knowledge (d)
relating to the offence and (e) to every other person
concerned, whether as principal or abettor in the
commission thereof. It may be mentioned here that
pardon is granted not after disclosure is made but
in anticipation of telling the whole truth.

94
The above procedures are to be following in
matter of tendering pardon.
Tender of pardon is always conditional. If the
accomplice fulfills the condition of the pardon, he
shall not be punished for the offence he admits to
have committed while making full and true
disclosure. The accomplice forfeits the pardon if he
willfully conceals anything essential or gives false
evidence. He can then be tried for the offence
which was pardoned but not jointly with the other
accused. For such prosecution of the accomplice a
certificate of the public prosecutor that he has not
complied with the conditions of pardon is
necessary. The accomplice can also be tried for
giving false evidence in which case sanction of the
High Court shall be necessary. In such trial of the
accomplice the accomplice may plead that he has
fulfilled the conditions of the pardon the on us shall
be on the prosecution to prove non compliance of
the terms of the pardon. The statement made by
the accomplice accepting the tender of pardon and
recorded by the Magistrate may be given in
evidence against him at such trial.
Tender of pardon is a judicial temptation given to
one of the co-accused to be a witness for
prosecution against his erstwhile comrades, pardon
plays a vital role in the punitive process of the
criminal law.
29. probation and Admonition :

95
Crime and punishment are two sides of a
coin. Acts or omissions made punishable is crime.
Punishment is sine qua non of the concept of
crime. Crimes are always visited with punishment.
Punishment is of several types out of which
imprisonment is one. The imprisonment is most
frequently used by the criminal courts.
Imprisonment as a punishment is not always
beneficial. It has several adverse effects. Such as,
1) It allows a convict to be in close association
with professional criminals and thereby helps a
convict to be contaminated with criminal career.
2) It decreases the capacity of the convict to re-
adjust to normal society after release.
3) It causes loss of job, and separation from
family.
4) Strict discipline does not afford any guarantee
that the prisoner has really transformed into a law
abiding citizen. For all these evils imprisonment as
a punishment (percolations of offender) is first to be
avoided.
The term “probation” is derived from the Latin
word “probare” which means to prove probation is a
conditional release of an offender under
suspension of punishment . Probation is a matter of
discipline and treatment. It is an embodiment of a
progressive criminal policy based upon the
discretion of the court. Probation enables the
convict to keep himself away form criminogenic
association of prison. Probation is a treatment

96
reaction to law breaking. It is given to the first
offenders and those offenders are selected under
judicial scrutiny. Probation has received statutory
recognition in India. Now probation is the rule and
imprisonment is exception. Penology has
undergone a great change in this regard.
Probation has been incorporated in the
probation of offenders act,1958, Besides, that
provisions have been made for probation and
admonition under section 360 of Cr PC. Section
360 empowers the court to deal leniently with a
person who has committed an offence for the first
time by releasing him on probation of good
conduct, instead of giving punishment in order to
give him a chance of reforming himself ad to
protect him form being corrupted and in order to
give him a chance of reforming him self and to
protect him from being corrupted and turned into a
regular criminal by association with hardened
criminal in jail. This provision applies to both young
and adult offenders. The provisions of section 360
are based on reformatory theory. As the present
day penology has been showing an increasing
emphasis on the reformation and rehabilitation of
the first offender as a useful and self reliant
member of society without subjecting to the
deleterious effects of jail life.
In order to attract the provisions of probation as
givin under section 360, the following factors must
be present.
1) The person to whom the probation may be

97
given must be a first offender. That means there
must not be any previous conviction against him.
2) The person must have been found guilty of the
offence.
3) Three categories are considered for probation.
They are (a) any person not under 21 years of age
it is convicted of an offence punishable (i) with fine
only or with (ii) imprisonment for a term of 7 years
of less.
(b) any person under 21 years of age or
(c) any woman if convicted of an offence not
punishable with (i) death, or (ii) imprisonment for
life.
4) The court shall consider (i) age (ii) character
(iii) antecedents of the offender and (iv) the
circumstances in which the offence was committed.
5) It must appear to the court that it is expedient
that the offender should be released on probation
of good conduct.
6) The power of granting probation shall be
exercised by any judicial court except by a second
class Magistrate. If not specially empowered by the
High court in that behalf.
If the above ingredients are present the court
may instead of sentencing him at once to any
punishment direct that the convict may be released
on probation on his entering into bond with or
without sureties to (a) appear and (b) receive
sentence when called upon during such period not
exceeding 3 years and (c) in the mean time to keep

98
the peace and (d) be of good behavior.
Section 360 is divided into two parts. First part
is for probation and the second part is devoted to
admonition .
The term admonition has been defined. The
term admonition etymologically means to condemn
the criminal act of the offender with a warning.
Admonition is given in milder offences. According to
sun-section 3 of section 360, the following
conditions must be present to release a person
after due admonition.
1) The person must have been found guilty of an
offence and convicted accordingly.
2) There must not be any previous conviction
against him.
3) The person convicted must have been found
guilty either of (a) theft (b) theft in a building (c)
dishonest misappropriation (d) cheating (e) any
offence under IPC punishable with not more than 2
years imprisonment or (f) any offence punishable
with fine only.
4) The court must consider (a) age ( b)
character,(c) antecedents (d) physical condition of
the accused or (e) mental conditions of the offender
(f) the trivial nature of the offence and , or (g) any
extenuating circumstances under which the offence
was committed.
5) The court must come to the conclusion that is a
fit case to release the convict after due admonition.
If the above ingredients are present, any court
may release the convict after due admonition.

99
It may be mentioned here that powers of
probation and admonition may be exercised by any
court exercising appellate or revisional jurisdiction.
A convict shall not be released on probation if
the offender or his surety has no fixed place of
aboard or regular occupation in the place where the
offender is likely to live during the period of
probation. If the convict violates the terms of
probation, the court may issue warrant for his
apprehension, and may punish him for his original
offence at which he is found guilty after due inquiry.
Probation and admonition are the latest
development of penal jurisprudence. As Justice
V.R. Krishna Aiyar has observed that so many
years of freedom have not freed our judiciary form
the out deted British Indian Penology ,bearing on
suppression of crime. And it is time our Magistracy
bends to the winds of social change. probation and
admonition are discretionary in nature and the court
is to assign special reasons if probation and
admonition are not resorted to in cases of first
offenders. So the judiciary should play a greater
role in this field.
30. Appeals :
Subject of appeal may be divided into the
following groups
1) Appeal against conviction
2) Appeal against acquittal
3) Appeal against inadequacy of sentence.

100
4) No appeal in certain cases.
5) Abatement of appeals and
6) Appeal against certain orders of
executive Magistrate.
An apple is a proceeding taken before a
superior Court or authority for reversing or
modifying a decision passed by an infenor court on
ground of error. An appeal is a creature of law.
There is no inherent right of appeal. Besides, the
appeals provided under Chapter 29 of the code
there are also other provisions which confer right of
appeal. Those provisions are made under section
86, 237(7), 250(6), 3412,449 456(3) and 458(2) of
the code.
1) Appeals from conviction are dealt with under
section 274,379,380. Any person convicted on a
trial may prefer appeal against such order before
the Appellate court as given below.
Conviction by Appeal lies to
1) High Court in its extra,
ordinary original criminal
jurisdiction.
2) High court reversing an order
of acquittal and sentencing him
either death or imprisonment
for life.
3) Imprisonment for a term of
10 years or more passed by:
a) Sessions judge.
b) Additional Sessions judge
1) To the Supreme
court.
2) The Supreme court.
3) To the High Court.

101
c) Any other court in which
sentence of imprisonment for
more than 7 years has been
passed.
4) Metropolitan magistrate of
Assistance Sessions judge, or
Magistrate first class, or Chief
judicial Magistrate under
Section 325 or order passed
by any magistrate under
section 360.
4) The Court of
Session.
2) Appeal against acquittal has been provided
under section 378.
Against the order of acquittal the state Govt. or
Central govt. May direct the public prosecutor to
present an appeal to the High Court. No such
appeal shall be entertained without the leave of the
High Court . If an order of acquittal is passed in any
case instituted upon complaint, the complainant
may prefer appeal after obtaining special leave to
appeal from the High Court. The period of limitation
for preferring appeal against acquittal is 6 months,
if he complainant is a public servant and 60 days in
every other case. If leave is refused there is no
appeal against it.
3) Appeal against inadequacy of sentence :-
With regard to point no 3 stated above, the
State Government or the Central Government
may direct the public prosecutor to present on
appeal to the High Court on the ground of

102
inadequacy of sentence. In such appeal the High
court shall not enhance the sentence except after
giving to the accused a reasonable opportunity of
showing cause against such enhancement. The
High Court may either acquit the accused enhance
or reduce the sentence in appropriate cases.
4) Appeal is a creature of law but in certain cases
right of appeal has been denied under section 375
and 376 of the Code.
i) There is no appeal where the accused has been
convicted on his plea of guilt, however, appeal may
be preferred for legality of the sentence.
ii) There shall be no appeal against the conviction
in the following cases.
a) Where a High Court passes only a sentence of
imprisonment for not exceeding 6 months or of fine
exceeding one thousand rupees or of both.
b) Where a court of session or a metropolitan
magistrate passes only a sentence of
imprisonment for a term not exceeding 3 months or
of fine not exceeding two hundred rupees.
c) Where a magistrate first class passes only a
sentence of fine not exceeding 100 rupees.
d) In a case tried summarily under Section 260
magistrate passes only a sentence of fine not
exceeding two hundred rupees.
However an appeal may be preferred
against any such sentence if any other punishment
is combined with it.
5) Abatement means end of the matter. An appeal
abates on the death of the accused. Every appeal

103
against inadequacy of sentence or against acquittal
shall finally abate on the death of the accuse. Every
other appeal except appeal against fine shall abate
on the death of the appellant.
But an appeal preferred against sentence
of death of death or of imprisonment shall not abate
on the death of the appellant if any of his near
relatives applies within 30 days of such death to the
appellate court for leave to continue the appeal and
if leave is granted.
The appellate court may dismiss an appeal
summarily if there is no sufficient ground for
interference. The appellate court shall pursues the
records and hear the parties or their lawyers and
may reverse the finding may reverse or alter the
finding and sentence and either acquit or discharge
the accused or may order for re-trial of the case.
The appellate court has power to suspend the
sentence during pending of the appeal and may
release the appellant on bail. In appeal against
acquittal the appellate court (High Court ) may
issue warrant directing the arrest of the accused. If
the convicted person is in jail he may present his
petition of appeal to the officer-in-charge of jail who
shall forward it to the proper appellate court.
6) With regard to appeal against certain orders of
Executive Magistrate any person who has been
ordered under section 117 to give security for
keeping the peace or for good behavior or who is
aggrieved by any order refusing to accepting or
rejecting a surety under section 121 may prefer
appeal to the court of session. Though the original

104
order is passed by an executive magistrate the
appellate authority is the Court of session.
31. Reference :
Reference is a judicial act. Matter of
reference has been provided under section 395 and
396 of the Code. For the purpose of making
reference the following requirements must be there.
1. A criminal case must be pending before any
court.
2. The case must involve a question as to the
validity of any Act, Ordinance, Regulation or its
provisions.
3. The final disposal of the case is not possible
unless that question of validity is decided first.
4. The court must be of the opinion that such Act,
Ordiance, Regulation, or provision is invalid or
inoperative.
5. Neither the high court to which that court is
subordinate nor the Supreme Court has decided
the above question of validity.
If the above factors are present, then the
court shall, a) state the case, b) set out its opinion,
c) give reasons therefore, d) refer the matter to the
high court for its decision.
Reference is always made only the High
Court . The court making the reference shall not
proceed with the case and shall wait till the high
court communicates its decision on reference.

105
32. Bail :
The term bail has not been defined. Bail
means release form restraint. An order of bail
gives back to the accused freedom of his
movement on condition that he will appear to face
his trial. Personal recognizance, surety ship bonds
and such other modalities are the means by which
an assurance is secured for the presence of the
accused at the trial. (AIR 1980 SC 1632).
The subject of bail may be divided into 3
groups.
1.Bail in bailable offences. (Section -436)
2.Bail in non-bailable offences, and (section-437).
3.Pre- arrest order for bail, which is popularly
known as anticipatory bail.(Section-438)
Bail in bailable offences is a matter of right,
provided the accused complies with the conditions
of the bail. Section 436 is imperative, a person
coming under section 436 can not taken in to
custody unless he is either unable or unwilling to
offer bail or to execute bond.
Section 437 deals with bail in non-bailable
offences by the court of a magistrate. The power of
high court and court of session are expressly
excluded from section 437. The powers of high
court and court of session regarding bail have been
provided under section 439.
Granting of bail in non-bailable offences is

106
discretionary in nature. The term non-bailable does
not mean that bail con not be granted.
Since grant of bail is a matter of discretion
such discretion, must be exercised keeping in view
of the provisions of the Code and the well
established principles, on the subject.
Section 437 provides certain restriction in the
discretionary powers of a court in matter of granting
bail such restrictions are
1. Any person accused of any non bailable
offence shall not be released on bail if there is
reasonable grounds for believing that he is guilty of
an offence punishable with either death or
imprisonment for life.
2. Any person accused of any non-bailable
offence shall not be released on bail if
a) such offence is a cognizable offene and
b) he had been previously convicted of an
offence punishable either with death, or
imprisonment for life, or imprisonment for 7 years or
more.
3. If such person is accused of cognizable
offence had been previously convicted on two or
more occasions of a non-bailable and cognizable
offence.
The above 3 restrictions may be relaxed and
the person may be released on bail if such person
is a) under the age of 16 years, or b) is a women,
or c) if the court is satisfied that it is just and proper
to release any person on bail for any other special
reason. The authority may release the accused on

107
bail at any stage of investigation , inquiry or trial if it
appears that there are no reasonable grounds for
believing that the accused has accused has
committed a non-bailable offence. At the time of
releasing the accused on bail the court may
imposed any condition. Such conditions may be to
ensure the attendance of the accused and to
ensure that such person shall not commit any
offence.
1. If the trial of a person accused of any non-
bailable offence is not concluded within a period
of 60 days from the first date fixed for taking
evidence and such person is in custody during
the whole of the said period such person shall
be released on bail.
That the Supreme Court on different
occasions has given same guide lines in matter of
bail concerning non-bailable offence. The sum and
substance of such guidelines are, the court shall
take into consideration the following factors while
granting bail. such as :
1. The nature and gravity of the circumstances
in which the offence is committed.
2. The severity of punishment which a conviction
will entail.
3. Nature of evidence received so far.
4. The position and status of the accused with
referrence to the victim and witnesses.
5. The likelihood of the accused to abscond.
6. The danger of the offence being continued or
repeated if enlarged.

108
7. Likelihood or tampering witnesses.
8. The period on custody and the likelihood of
delay in the trial.
9. Opportunity to prepare defence and
10. The health or sex or age of the accused.
On this point reference may be made to cases
reported in AIR SC 1016, AIR 1978 SC 179,
AIR1978 SC 527 AND AIR 1978 SC 429.
33. Anticipatory Bail :
The subject of bail may be divided into two
categories.
(1) Pre-arrest bail and (2) Post-arrest bail
When a person is made accused in a case,
he is arrested or brought or he appears before a
court. Such person can apply for bail. That bail
comes under the second category (post arrest bail).
But when a person is neither arrested, nor any case
is instituted against him, he may move the
appropriate court for bail , if he has reason to
believe that he may be arrested on an accusation
of having committed a non-bailable offence. This
type of bail comes under the first category. This is
popularly known as anticipatory bail. Special power
have been conferred only the High Court and court
of session for directing a person to be released on
bail previous to his arrest. As the Supreme Court
has said that , the salutary provision has been
enshrined in section 438 to see in that the liberty of

109
the subject is not put in jeopardy on frivolous
grounds at the instance of unscrupulous or
irresponsible persons or officer who may be in
charge of prosecution. ( AIR 1977 SC 366).
The Supreme Court in Guru Baksh Singh Vs
State of punjab AIR 1980 SC 1632 has laid down
the following principles to be followed relating to
grant of anticipatory bail.
1. The appellant must show that he has reason
to believe hat he may be arrested on an accusation
of having committed a non-bailable offence.
2. The High Court or court of session must apply
its mind to the question and decide whether a case
has been made out for grant of anticipatory bail.
3. Filing of first information report is not a condition
precedent to the exercise of the power under
section 438.
4. Anticipatory bail can be granted even after an
FIR is filed, so long as the applicant has not been
arrested.
5. Provisions of section 438 can not be invoked
after the arrest of the accused.
6. It is necessary for the courts which grant
anticipatory bail to take care to specify the offence
on respect of which alone the order will be
effective.
7. The court should limit the operation of the order
to a short period.
8. Anticipatory bail can be passed without to the

110
public prosecutor.
Anticipatory bail is not a bail. It is rather a
pre-arrest order for bail and direction to the
arresting authority that in the event of such arrest
he shall be released on bail. Anticipatory bail may
be made subject to certain conditions as
enumerated under section 438(2). Such conditions
may be
i) The person shall make himself available for
interrogation, in the case as and when required by
the police.
ii) He shall not make any inducement, threat or
promise to the witnesses.
Iii) He shall not leave India without previous
permission of the court and
iv) Such other conditions as may be imposed
under section 437(3).
34. Short Notes on :
(i) Attachment- (Section – 83) :
The term attachment has not been defined in
the Code Attachment means to bring the property
movable immovable or both under the judicial
control of the court. The attachment of properties is
ordered when the person either absconds or
conceals himself, So that warrant issued against
him can not be executed. When such proclaimed
person is about to remove or dispose of either
whole or any part of his property from the local
jurisdiction of the court. The court may pass order
of attachment of his properties.

111
If the property order to be attached is a dept or
movable property the attachment is made either by
seizure or by appointment of a receiver or by an
order prohibiting the delivery of such property or by
all such methods. If the property is a land paying
revenue, the attachment is made through the
Collector of the District in which the land is situate.
If the property ordered to be attached consists of
livestock or is of perishable nature, the court may
order for sale of such property. Attachment made
under section 83 Cr PC and attachment made
under provisions of CPS are different. The object of
attachment under section 83 is compel the
proclaimed person to appear before the court a
property is attached the court is bound to hear the
claims and objection made to the attachment and in
suitable cases may release, sel or restore the
attached properly. Any person whose claim or
objection has been disallowed may within a period
of one year form the date of such order institute a
suit to establish his right. The court shall release
the property from attachment if the proclaimed
person appears within the time specified in the
proclamation.
(ii) Letter Rogatory (Section -160-A ,160- B)
Law relasting to letter Rotatory has been
provided under S. 160 -B, Cr. PC. Letter Rogatory
is letter f request made by a court addressed to an
authority in a foreign country. During investigation
of a case if an application is made by the
investigating officer or any officer superior in rank to

112
him with the fact that evidence of required for the
case is available in a country or place outside India,
any criminal court may issue a letter of request to a
court or an authority in that country requesting it to
examine any person to record his statement or to
reduce any document or thing and to forward the
same to the court issuing such letter. Letter
Rogaroty may be sent by any criminal court to any
foreign court or authority similarly foreign criminal
court may also issue such letter to any Indian court
. Any statement recorded or document or thing
received through letter Rogatory shall be deemed
to be the evidence collected during the course of
investigation.
(iii) Order of Remand :
The term remand means to send back. The
term remand as has been used in section 167 Cr
PC means to send back the accused into custody
awaiting further evidence.
Investigation of a case by the police ought to
be completed within 24 hours. When any person is
arrested and detained in custody and the
investigation of the case can not be completed
within 24 hours and there are grounds for believing
that the accusation against the person is well
founded, it is obligatory on the part of the
investigating officer to produce the arrestee before
the nearest judicial magistrate along with a copy of
the entries in the case diary under section 167. The
magistrate if thinks fit may authorize the detention
of the accused in custody. This authorization of

113
detention is known as order of remand. Such order
of remand by judicial magistrate shall be for a term
not exceeding 15 days at a time. The order of
remand passed by an executive magistrate shall
not exceed 7 days.
If the judicial magistrate is satisfied that further
detention of the accused is justified , he may pass
successive orders of remand, not exceeding a term
of 15 days each during investigation.
The provisions of section 167 have put some
restrictions on the above power of successive
remand. Such restrictions are :-
1. If the investigation in to the case
completed and the charge sheet is not field before
the expire of the period of detention of the accused
which may be 90 days pr 60 days as the case may
be the accused is entitled to be released on bail
under provisions of section 168(2) (a). No
discretion what so ever is left to the magistrate. The
total period of remand shall not exceed 90 days
where the investigation relates to an offence
punishable with death or imprisonment for life or
imprisonment for a term not less than 10 days and
60 days in any other case. The Government of
Orissa has by amendment substituted the above 90
days by 120 days.
2. The further restriction as imposed by
section 167, is that the person detained must be
physically produced before the magistrate at the
time of making further remand.
3. The physical production of the accused may
be proved by his signature on the order authorizing

114
detention.
4. No second class magistrate if not specially
empowered by the High Court shall remand the
person to police custody. The magistrate
remanding a person to police custody must record
his reasons for so doing. If a person is continuously
in detention for a period of 120 days, 90 days or 60
days as the case may be and charge sheet has not
been field before the magistrate during such period,
the accused acquires a valuable right to be
released on bails provided he furnishes bail.
The power of a magistrate for passing
successive remand orders are controlled by section
167.
(iv) Set-off (Section -428) :
The term set-off means adjustment Section
428 provided for set-off. According to the provisions
of Section 428 a pre-conviction detention of an
accused shall be set-off against the term of
imprisonment imposed on him. The supreme court
has observed in Hardev AIR 1975 SC 179 to the
effect that the court convicting the accused should
specify in their orders the total period of pre-
conviction detention undergone by the convict
during investigation inquiry and trial for the purpose
of enabling the authorities concerned to give effect
to section 428. This provision of set-off has been
introduced in the code so that it would go a long
way to mitigate the evils of jail. An accused
sentenced to imprisonment for life is not entitled to
the benefit of set-off. If a sentence of imprisonment
is in default of fine, no set-off is available.

115
(v) Commutation of sentence :
The term commutation means to change.
The power of commutation has been provided
under section 54 and 55 IPC and 433 and 433-A,
434 Cr PC.
Power of commutation is a power which shall
be exercised by the appropriate government.
According to section 433, the appropriate
government may commute.
a) A sentence of death- for any other punishable
provided by IPC.
b) Imprisonment for life- for imprisonment not
exceeding 14 years or fine.
c) Rigorous imprisonment- for simple
imprisonment or for fine
d) Simple imprisonment – for fine.
Section 433-A provides restriction on
premature
release of a convict. According to the provisions of
section 433-A, if a person sentenced to undergo
imprisonment for life for an offence for which (a)
either death is one of the punishments provided by
law, or (b) a sentence of death imposed has been
commuted to imprisonment for life, such convict
shall not be released form prison, unless he has
served at least 14 years of imprisonment.
Where in a case government by section 433-A,
the convict has completed his detention in full 14

116
years he con not claim a direction for their
premature release on the basis or reconviction
detention and remissions earned by him (1990Cr Lj
234).
Section 433-A, is constitutionally valid and is
not violative of Article 14 and 20 of the Constitution.
(vi) Compensation :
The term compensation means to make up or
to recoup the loss sustained. The power to order for
compensation has been made under section
237,250,357,358,359.
According to section 237 and 250 court may
award compensation to the accused when there
was no reasonable ground for making accusation
against him. But before passing an order for
compensation sufficient time should be allowed to
the party to show cause why he should not be
asked to pay compensation. In default of payment
of compensation the person may be ordered to
undergo simple imprisonment for a period not
exceeding 30 days. The order to pay compensation
is appealable. The compensation awarded shall be
taken into consideration by the Civil Court in
awarding compensation in subsequent civil relating
to the same matter.
Under section 357 when a court imposes
sentence of fine, the whole or any part of the fine
may be paid by way of compensation to the
prosecution for the expenses incurred or for loss or
injury caused to the victim by such offence. If no

117
fine is imposed court has also power to ask the
convicted accused to pay compensation to make
good the loss or injury suffered by the victim.
Under section 358 compensation may be
awarded not exceeding 100 rupees to persons
ground lessly arrested on the false information. All
compensation may be recovered as if were a fine
Under section 359 court has power to ask the
convict to pay to the complainant the cost incurred
by the prosecution.
* * ** ** ** ** **

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