Law of Crime-2

1. Explain the meaning of cognizable and Non-Cognizable offence and

clarify the difference between them.

Ans: Cognizable and Non-Cognizable offences have been defined in

Criminal Procedure Code as follows;

Cognizable Offence
1. Cognizable offence means an offence for which a police officer may, in
accordance with the First Schedule or under any other law for the time being in
force, arrest without a warrant.
2. Cognizable offences are those offences which are serious in nature.
Example- Murder, Rape, Dowry Death, Kidnapping, Theft, Criminal Breach of
Trust, Unnatural Offences.
3. Section 154 of CrPc provides that under a Cognizable offence or case, the
Police Officer has to receive the First Information Report (FIR) relating to the
cognizable offence, which can be obtained without the Magistrate’s permission
and enter it in the General Diary to immediately start the investigation. An FIR
sets the criminal law in motion.
4. If a Cognizable offence has been committed, a Police Officer can
investigate without the Magistrate’s permission.

Non-Cognizable Offence

1. A non-cognizable offence has been defined in Criminal Procedure Code as

follows- as "a case in which, a police officer has no authority to arrest without
a warrant".
2. Non-Cognizable offences are those which are less serious in nature.
Example- Assault, Cheating, Forgery, Defamation, etc.
3. Section 155 of CrPc provides that if a police officer receives information
regarding the commission of a non-cognizable offence, he is supposed to enter
the substance of the case in the station diary and refer the informant to
approach the concerned Magistrate.  
4. Under a Non-Cognizable offence/case, in order to start the investigation,
it is important for the police officer to obtain the permission from the
Magistrate.

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 Cognizable Non-
Cognizable

It is the offence in which a police It is the offence in which a

officer can arrest the convict police officer cannot arrest a
without the warrant. person without the warrant.

The police can start a The police officer cannot start the
preliminary investigation investigation without the permission of
without the permission of the the court.
court or without registering the
FIR.

These are heinous crimes like These crimes are not so serious like
murder, rape, dowry death etc. forgery, cheating, defamation etc.

The victim can file an FIR or The victim can only make a complaint
make a complaint to the to the magistrate.
magistrate.

It is defined in the Section 2(c) of It is defined in Section 2(I) of Criminal

the Criminal Procedure Code, Procedure Code 1973.
1973.

The police officer is bound to The police officer is not bound to

register the FIR even without the register the FIR or cannot register the
permission of Magistrate. FIR without prior permission of the
magistrate.

It is a non-bailable offence. It is a bailable offence.

2. Discuss the provisions regarding release of an accused person on

bail under non bailable offence

Ans. The statutory provision under Section 473 of CrPC  confers a discretionary

power on the Court or concerned Police Officer the power to release the accused on
bail, accused of non-bailable offence. Exception being that the accused shall not
be guilty of offence punishable with death or with imprisonment for life. However,
the following categories of persons may be released on bail even if charged for a
non-bailable offence:

1. Person under the age of 16 years

2. A woman
3. A sick or infirm person

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Where a person is charged with a non-bailable offence, but it appears in the
course of the trial that he is not guilty of such offence, he can be immediately
released on bail pending further inquiry.

Section 473 of CrPC  also provides for review of the order by the Court which has
released the person on bail. The power of the Magistrate under this section cannot
be treated at par with the powers of the Sessions Court and the High Court
under Section 439 of CrPC(Special powers of High Court or Court of Session
regarding bail).

Bail matters to be decided judiciously

In plethora of judgments the judiciary has indicated that bail matters shall be
decided judiciously. In a recent case Dataram Singh v. State of Uttar Pradesh
& Anr., the Supreme Court emphasized on deciding bail matters judiciously and
in human manner. The Apex Court observed that fundamental postulate of
criminal jurisprudence is the presumption of innocence, meaning thereby that a
person is believed to be innocent until found guilty.  It was also observed that the
grant or refusal of bail is entirely within the discretion of the judge hearing the
matter and though that discretion is unfettered, it must be exercised judiciously
and in a humane manner and compassionately.

3. Circumstances under which complaint can be filed before a magistrate.

As per Section 2 (c) of the Cr.P.C., a “cognizable offence” means an offence for
which, and “cognizable case” means a case in which, a police officer may, in
accordance with the First Schedule or under any other law for the time being in
force, arrest without warrant[i];

A complaint relating to the commission of a cognizable offence is usually given

directly to the police under Section 154 of the Cr.P.C. which is recorded in the
form of First Information Report (FIR). It is incumbent for the police to register an
FIR if the complaint relates to the commission of a cognizable offence.

However, a situation may arise wherein, despite informing the police about the
commission of cognizable offence, the police officers did not register the FIR. In
such a circumstance, the informant may first approach any Senior Police official or
the Superintendent of Police with a written application. Even if that does not
generate any satisfactory result, in the sense that either the FIR is still not
registered, or that even after registering it no proper investigation is held, it is open
to the aggrieved person to file an application under Section 156 (3) of the Cr.P.C.
before the learned Magistrate having jurisdiction, who can then direct the police to
register the FIR and conduct investigation.[ii]

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Section 156 of the Cr.PC. reads as under:

Police officer’s power to investigate cognizable case. —

(1) Any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local
area within the limits of such station would have power to inquire into or try under
the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in
question on the ground that the case was one which such officer was not
empowered under this section to investigate.

(3). Any Magistrate empowered under section 190 may order such an investigation
as above- mentioned.

Procedure:

- the aggrieved person to file an application under Section 156 (3) of the
Cr.P.C. before the learned Magistrate having jurisdiction, who can
then direct the police to register the FIR and conduct investigation
- there has to be prior applications under Sections 154(1) and 154(3) while
filing a petition under Section 156(3). Both the aspects should be clearly
spelt out in the application and necessary documents to that effect shall be
filed
- Section 156(3) CrPC applications are to be supported by an affidavit duly
sworn by the applicant who seeks the invocation of the jurisdiction of the
Magistrate.

4. Explain the provisions for maintenance of wife children and parents.

The following persons can claim maintenance U/S 125 cr.p.c

1. Wife of a person who is unable to maintain herself.

2. The legitimate or illegitimate minor children who is unable to maintain itself

3. The legitimate or illegitimate children who attend the majority but due to
reason of physical, or mental abnormality or injury unable to maintain itself

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4. The father and mother of a person who is unable to maintain itself.

When wife is entitled or not entitled to get maintenance

Wife is entitled to move an application u/s 125 before a Magistrate of the first
class if when

1. The husband refuses to maintain her or she is neglected by the husband.

2. The husband has sufficient means

3. She is unable to maintain herself.

Wife is not entitled to receive the an allowance from her husband in three cases
if when :-

1. she is living adultery

2. she is refused to live with her husband without sufficient cause

3. they are living separately with mutual consent

When children's are entitled or not entitled to get maintenance

1. all the legitimate or illegitimate male or female child whether married or not
can claim maintenance.

2. the children who attend the majority can claim maintenance if they are
physical or mental abnormality or injury not unable to maintain itself.

3. However, the married adult female child cannot claim maintenance from her
parents.

When PARENTS are entitled or not entitled to get maintenance

1. When father mother unable to maintain itself.

2. The son or daughter whether married or not married having sufficient means
neglects or refuse to maintain

3. Father mother includes adoptive father or mother ,step father or steep

mother.

If there is two or more children the parents may seeks remedy against any one
or more of them.

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5. Prosecution for offences against marriage (section 198)

1. Except upon a complaint made by some person aggrieved by the offence. No

Court shall take cognizance of an offence punishable under Chapter XX of the
Indian Penal Code.

Provided that :

1. where such person is :

 below the age of eighteen years, or

 an idiot or

 a lunatic, or

 unable to make complaint due to sickness or infirmity or

 a woman who, according to the local customs and manners, cannot

compelled to appear in public.

some other person may, for above mentioned person and also with the leave of
the Court, make a complaint.

2. where such person is husband and also serving in any of the Armed Forces
of the Union. If his commanding officer preventing him from obtaining leave of
absence to unable him to make complaint. Then some other person so
authorized by the husband in accordance with the provisions of Sub-Section
(4) may make a complaint on his behalf;

3. where the person aggrieved by an offence is the wife who is punishable

under section 494 or section 495 of the Indian Penal Code. Then the complaint
may made by her father, mother, brother, sister, son or daughter or by her
father’s or mother’s, brother or sister on her behalf. With the leave of the
Court, by any other person related to her by blood, marriage or adoption.

2. According to sub-section 1, only the husband of the woman deemed to

aggrieved by any offence punishable under section 497 or section 498 of the
Indian Penal Code. Provided that in the absence of the husband, some other
person who had care of the woman at the time when such offence committed.
Such person may, with the leave of the Court, make a complaint on his behalf.

3. The complaint sought to made on behalf of a person below the age of

eighteen years or a idiot or a lunatic by some person. Such person has not
appointed or declared by a competent authority to be the guardian of the
person of the minor or lunatic. The Court satisfied that a guardian so
appointed or declared. The Court before granting the application for leave. It

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shall cause notice to given to such guardian and give him a reasonable
opportunity of being heard.

4. The authorization shall provided in written form. It shall signed or otherwise

attested by the husband. Also contain a statement to the effect that he has
knowledge of the allegations upon which the complaint needs to founded. The
authorization shall also countersigned by his Commanding Officer. It shall
have attachment of certificate by that Officer. Such certificate should contains
the reason for leave of absence cannot granted to the husband.

5. Any document purporting to be such an authorization and complying with

the provisions of Sub-Section (4). Any document purporting to be a certificate
required by that Sub-Section. It shall, unless the contrary is proved, be
presumed to be genuine and shall be received in evidence.

6. No Court shall take cognizance of an offence under section 376 of the Indian
Penal Code (45 of 1860), where such offence consists of sexual inter-course by
a man with his own wife, the wife being under eighteen years of age, if more
than one year has elapsed from the date of the commission of the offence.

7. The provisions of this section apply to the abetment of, or attempt to

commit, an offence as they apply to the offence.

6. What is the Difference between Admission and

Confession?
The Indian Evidence Act, 1872  under Section 17 defines “Admission”. It states
that:

Admission is a statement:-

 Oral
 Documentary
 In Electronic form

Such statement shall suggest any inference as to any fact in issue or relevant fact

Such statement shall be made by any person and in circumstances as mentioned

under the Act

Admissions are considered as a substantive evidence, however are not a conclusive

proof of the matters admitted.

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On the other hand there is no statutory definition of “Confession”, however the
expression is often confused with “Admission” as all confessions are dealt with
under Section 17 of the Evidence Act. The Judiciary in some cases has outlined
the difference between the two. For instance in the case of Pakala Narayan
Swami v. Emperor[1], the Court remarked that a confession must either admit in
terms the offence, or at any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a conclusively
incriminating fact is not in itself a confession.

Definition of Confession

Confession is used to mean a form of admission, made by the accused, declaring

the inference that he/she committed the offence. It is regarded as the best
evidence against its maker and also against the co-accused, i.e. the person who is
also involved with the accused in the commission of a crime.

So, it must either admit the crime or significantly all the facts that amount to the
crime. Confession can be classified into two categories:

 Judicial Confession: When a confession made before the court or recorded

by the magistrate, it is said to be a judicial confession.
 Extra-Judicial Confession: When a confession is made before the police or
any other individual excluding the Judges and Magistrates.

Definition of Admission

The term admission can be defined as the voluntary statement that acknowledges
the truth of a fact. It can be oral, documentary or in electronic form which
proposes inferences about any fact in question or a material fact. Documentary
evidence is one that is available in the form of letters, receipts, maps and bills, etc.

An admission is made by any person who can be a party to the lawsuit,

predecessor-in-interest of a party, agent or any person having certain interest in
the subject matter.

An admission is considered as the supreme evidence against the party who makes
it, except if it is not true and made under those conditions that do not bind
him/her. So, it must be clear, certain and precise.

Distinction between Admission and Confession

CONFESSION ADMISSION

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 When a confession falls short of actual
Only voluntary and direct acknowledgment of admission of guilt it may be used as an
guilt is confession. evidence of an incriminating fact i.e. as an
admission of a fact.

An admission usually relates to civil matters

A confession is made by the accused person
and comprises all statements amounting to
which is sought to be proved in the Court of
admission under Section 17 of the Evidence
Law.
Act.

Admissions are considered as a substantive

evidence, however are not a conclusive proof
A confession is considered as a conclusive of the matters admitted.
proof.
 

Confession made by one or more accused Admission by one of the several defendants
jointly may be used as an evidence against a cannot operate as an evidence against other
co-accused. defendants.

Admission amounts to inference about the

Confession is a direct admission of guilt. liability of the person making admission in a
suit.

7. Arrest without Warrant

Section 41 enumerates the different categories of cases in which an officer of

the Police Department may arrest an individual without an order from a
Magistrate and a warrant. These include the following.

1. A person who has been concerned with and in any cognizable offence or
against whom a reasonable complaint has been filed, or credible
information has been received, or a reasonable suspicion surrounds the
person, of his having been so concerned.

2. A person who has an item in his possession without any lawful excuse,
the burden of proving which excuse shall lie on such a person, any
implement of housebreaking.

3. A person who has been proclaimed as an offender either under the Code
or by order of the State Government.

4. A person who is in possession of anything that may reasonably be

suspected to be stolen property and a person who may be reasonably be
suspected of having committed an offence with a reference of such a
thing.

5. A person who obstructs the functioning of a police officer while in the

execution of his duty, or who have escaped, or attempts to escape, from
lawful custody.

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 6. An individual who is reasonably suspected of being a deserter from any
of the Armed Forces of the Union.

7. A person who has been involved in, or against whom a reasonable

complaint has been made, or credible information has been obtained, or
a reasonable suspicion exists, of his having been involved in, any act
committed at any country or a place out of India which, if done in India,
would have been considered and punishable as an offence, and for which
he is, under any law concerned to extradition, or otherwise, liable to be
apprehended or detained in custody in India.

8. A person who was a released convict and commits a breach of any rule,
relating to the notification of the residence or change of or absence from
the place of residence.

9. A person for whose arrest any requisition, regardless of being written or

oral, has been received from another officer, provided that the order
specifies the individual to be arrested and the crime or other causes for
which the detainment is to be done, and it appears therefrom that the
individual might lawfully be arrested without a warrant by the officer
who issued the requisition.

8. TRIAL BEFORE A COURT OF SESSION

Section 225 to 237 of CRIMINAL PROCEDURE CODE (CRPC) –

o 225. Trial to be conducted by Public Prosecutor.

o 226. Opening case for prosecution.

o 227. Discharge.

o 228. Framing of charge.

o 229. Conviction on plea of guilty.

o 230. Date for prosecution evidence.

o 231. Evidence for prosecution.

o 232. Acquittal.

o 233. Entering upon defence.

o 234. Arguments.

o 235. Judgment of acquittal or conviction.

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 o 236. Previous conviction.

o 237. Procedure in cases instituted under section 199 (2).

CHAPTER XVIII, SECTION 225 TO 237 OF CRIMINAL PROCEDURE CODE

(CRPC) – TRIAL BEFORE A COURT OF SESSION

225. Trial to be conducted by Public Prosecutor.

In every trial before a Court of Session, the prosecution shall be conducted by a

Public Prosecutor.

226. Opening case for prosecution.

When the accused appears or is brought before the Court in pursuance of a

commitment of the case under section 209, the prosecutor shall open his case
by describing the charge brought against the accused and stating by what
evidence he proposes to prove the guilt of the accused.

227. Discharge.

If upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge the accused and
record his reasons for so doing.

228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of

opinion that there is ground for presuming that the accused has committed an
offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge
against the accused and, by order, transfer the case for trial to the Chief
Judicial Magistrate, or any other Judicial Magistrate of the first class and
direct the accused to appear before the Chief Judicial Magistrate, or, as the
case may be, the Judicial Magistrate of the first class, on such date as he
deems fit, and thereupon such Magistrate shall try the offence in accordance
with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against
the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the
charge shall be read and explained to the accused and the accused shall be
asked whether he pleads guilty of the offence charged or claims to be tried.

229. Conviction on plea of guilty.

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If the accused pleads guilty, the Judge shall record the plea and may, in his
discretion, convict him thereon.

230. Date for prosecution evidence.

If the accused refuses to plead, or does not plead, or claims to be tried or is not
convicted under section 229, the Judge shall fix a date for the examination of
witnesses, and may, on the application of the prosecution, issue any process
for compelling the attendance of any witness or the production of any
document or other thing.

231. Evidence for prosecution.

(1) On the date so fixed, the Judge shall proceed to take all such evidence as
may be produced in support of the prosecution. 

(2) The Judge may, in his discretion, permit the cross-examination of any

witness to be deferred until any other witness or witnesses have been examined
or recall any witness for further cross-examination.

232. Acquittal.

If after taking the evidence for the prosecution, examining the accused and
hearing the prosecution and the defence on the point, the Judge considers that
there is no evidence that the accused committed the offence, the judge shall
record an order of acquittal.

233. Entering upon defence.

(1) Where the accused is not acquitted under section 232 he shall be called
upon to enter on his defence and adduce any evidence he may have in support
thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the
record.

(3) If the accused applies for the issue of any process for compelling the
attendance of any witness or the production of any document or thing, the
Judge shall issue such process unless he considers, for reasons to be recorded,
that such application should be refused on the ground that it is made for the
purpose of vexation or delay or for defeating the ends of justice.

234. Arguments.

When the examination of the witnesses (if any) for the defence is complete, the
prosecutor shall sum up his case and the accused or his pleader shall be
entitled to reply:
Provided that where any point of law is raised by the accused or his pleader,

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the prosecution may, with the permission of the Judge, make his submissions
with regard to such point of law.

235. Judgment of acquittal or conviction.

(1) After hearing arguments and points of law (if any), the Judge shall give a
judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in

accordance with the provisions of section 360 hear the accused on the question
of sentence, and then pass sentence on him according to law.

236. Previous conviction.

In a case where a previous conviction is charged under the provisions of sub-

section (7) of section 211, and the accused does not admit that he has been
previously convicted as alleged in the charge, the Judge may, after he has
convicted the said accused under section 229 or section 235, take evidence in
respect of the alleged previous conviction, and shall record a finding thereon:
Provided that no such charge shall be read out by the Judge nor shall the
accused be asked to plead thereto nor shall the previous conviction be referred
to by the prosecution or in any evidence adduced by it, unless and until the
accused has been convicted under section 229 or section 235.

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9. Explain the constitution and power of a criminal court

The Criminal Procedure Code: Criminal Courts

Criminal law occupies a pre-dominant place among the agencies of social control and
is regarded as a formidable weapon that the society has forged to protect itself against
anti-social behaviour. The laws of criminal procedure are meant to be complementary
to criminal law. It is intended to provide a mechanism for the enforcement of criminal
law. The Code of Criminal Procedure of 1989 was repealed by the Code of 1973 to
consolidate and amend the laws related to Criminal Procedures. It is an Act to
strengthen and change the law relating to the procedure to be followed in
apprehending criminals, investigating criminal cases and their trial before the
Criminal Courts. This article talks about The Criminal Procedure Code: Criminal
Courts and essential information related to the same.

Various Classes of Criminal Courts in India

Besides the Courts that are mentioned below, the Courts may also be constituted
under any other law. The Supreme Court is vested with the appellate jurisdiction
regarding criminal matters from a High Court in some instances as well. The following
are the other major criminal courts in India.

1. The High Courts

2. The Courts of Session

3. The Judicial Magistrates of the First Class, and, in any metropolitan area; the
Metropolitan Magistrates.

4. The Judicial Magistrates of the Second Class

5. The Executive Magistrates

The Supreme Court of India

The highest form of a judicial forum and final court of appeal is the Supreme Court of
India as stated under the Constitution of India. The Supreme Court of India is
entrusted with the power of the judicial review. This Court is formed by the Chief
Justice of India and a panel of 30 other judges who hold extensive capabilities in the
form of original appellate and advisory jurisdictions. As the Supreme Court is the final
court of appeal in the nation, it chooses to take up appeals primarily against the
verdicts issued by the High Courts of various states. It safeguards the primary
fundamental rights of the citizens and settles disputes between the governments of
multiple countries. The laws declared by the Supreme Court binds the courts all
around the country including the Union and State Governments. The President of
India has to enforce the decrees of the Supreme Court as per the law.

The High Courts

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The judicial system of India is formed by the 24 High Courts placed at the country’s
state and union territory level along with the Supreme Court of India at the national
level. Every High Court has the jurisdiction over a state, a union territory or over a
group of states and union territories. The High Courts of India are considered the
principal civil courts of the original jurisdiction in every state and union territory. A
High Court exercises its original civil and criminal jurisdiction when the subordinate
courts do not authorisation by law to try such cases. These courts may also have
approval in first authority in some issues as explicitly designated in the federal or
state’s laws.

Courts of Judicial Magistrate of First Class

The second lowest level of the structure that forms the Criminal Couts in India. As
stated in the Criminal Procedure Code of 1973, a State Government may establish a
Court of Judicial Magistrate of the First Class with the consultation of the High Court
of the respective state. The Judicial Magistrate is generally controlled by the Sessions
Judge with the Chief Judicial Magistrate as a subordinate as stated in Section 15 of
the Code. A Judicial Magistrate of First Class has the power to pass a sentence of
imprisonment for a term that does not exceed three years, or of a fine that does not
exceed Ten Thousand Rupees or of both.

Courts of Judicial Magistrate of Second Class

The lowest in the hierarchy that forms the Criminal Court structure in India is the
Courts of the Judicial Magistrate of Second Class. As stated in Section 11 of the
Criminal Procedure Code of 1973, a State Government may establish a Court of
Judicial Magistrate of the First Class with the consultation of the High Court of the
respective state. A Judicial Magistrate of First Class has the power to pass a sentence
of imprisonment for a term that does not exceed more than one year, or of a fine that
does not exceed Five Thousand Rupees or of both.

The Executive Magistrates

The Executive Magistrate is an officer of the law who is vested with specific powers
and duties as stated under the Criminal Procedure Code and the Indian Penal Code.
These officers do not hold power to accuse nor pass any verdict of sorts. An individual
arrested on the orders of a court outside its local jurisdiction would be produced
before the Executive Magistrate who may also set a bail amount for the arrested
individual to avoid the custody of the Police depending on the warrant. This officer
may also pass orders restraining individuals from entering a specific area and
authorised to use force against people. A District comprises of the following Judicial
Magistrates.

1. The Chief Judicial Magistrate

2. The Additional Chief Judicial Magistrates

3. The Sub-Divisional Judicial Magistrates

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4. The Judicial Magistrates First Class

Power of the Courts

The powers of the Courts have been stated in Chapter III of the Criminal Procedure
Code. One of these powers is to try offences. Offences are categorised into two majorly.

1. Those offences that may be tried under the Indian Penal Code.

2. Those offences under any other law.

According to Section 26 of the Criminal Procedure Code, any offence under the Indian
Penal Code of 1860 may be tried by the High Court or the Court of Session or by any
other Court. Such a crime is shown in the First Schedule to be triable. On the other
hand, any offence under any other law shall be tried by the Court mentioned in that
law. If it has not been mentioned, it may be tried by the High Court or any other Court
by which such an offence is shown in the First Schedule to be triable.

Power of the Court to pass sentences

Sentences which the High Courts and Session Judges of India may pass

According to Section 28, a High Court in India may pass any sentence authorised by
law. A Sessions Judge or an Additional Sessions Judge may pass any punishment
permitted by the law, but any sentence of death given by any such judge shall be
subject to confirmation by the High Court of India.

An Assistant Sessions Judge may choose to pass any sentence as authorised by the
law except a sentence of death or one regarding imprisonment for life or of
imprisonment for a term that exceeds ten years.

Therefore, Section 26 of the Criminal Procedure Code enumerates the types of Courts
in India in which various offences can be tried and then under Section 28, it spells out
the limits of the sentences which such Courts are authorised to pass.

Sentences of the Magistrates

Section 29 of the Criminal Procedure Code lays down the quantum of punishment
which different categories of Magistrates are empowered to impose. The powers of the
individual classes of the Magistrates to pass sentence are as follows.

1. The Court of the Chief Judicial Magistrate may pass any sentence as authorised
by the law except that of a sentence of death or imprisonment for life or imprisonment
for a term exceeding more than seven years.

2. The Magistrate of the first class may pass a sentence of imprisonment for a
term not exceeding more than three years or of a fine not exceeding more than Five
Thousand Rupees or of both.

3. The Magistrate of the second class may pass a sentence of imprisonment for a
term not exceeding one year, or of penalty not exceeding One Thousand Rupees or of
both.

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4. The Chief Metropolitan Magistrate shall have all the powers of the Court of a
Chief Judicial Magistrate and that of the Metropolitan Magistrate and the powers of
the Court of the Magistrate of the First Class.

Sentence Imprisonment in Default of Penalty

When a fine is imposed on an accused, and it has not been paid, the law provides that
the accused can be imprisoned for a term in addition to substantive imprisonment
awarded to him, if any. Section 30 of the Criminal Procedure Code defines the limits of
the Magistrate’s powers to award imprisonment in concern to the default of payment
of the penalty.

It states that the Court of a Magistrate may impose such a term of imprisonment in
default of payment of a penalty as is authorised by the law provided that the term is as
follows.

1. The term is not more than the powers of the Magistrate under Section 29.

2. The term where the imprisonment has been awarded as a part of the
substantive sentence. This term should not exceed 1/4th of the time in prison which
the Magistrate is competent to inflict as a punishment for the offence than as
imprisonment in concern to the default of payment of the fine.

Conviction of several offences at one trial

Section 31 of the Criminal Procedure Court relates to the quantum of punishment

which the Court is authorised to impose where the accused is convicted of two or more
crimes at one hearing.

10. Provisions related to trial of summons cases and summary

trial

What is a Summary Trial?

Summary trial is the name given to trials where cases are disposed of speedily and the procedure are
simplified and the recording of such trials are done summarily. In a summary trial only, small offences
are tried and complicated cases are reserved for summons or warrant trials. The main purpose of
summary trials is to expeditiously dispose of cases as the caseload on the judiciary is immense and
continues to grow. Summary trials also seek to uphold the legal maxim, “Justice delayed is justice
denied.” Summary trials allow for the people to procure justice even for small offences that may
otherwise have taken years to complete legal proceedings.

Legal provisions for Summary trials are provided for under Sections 260-265 of the Code of Criminal
Procedure.

Types of offences that can be tried in a Summary Trial

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Sections 261 and 262 provide the type of cases that can be heard by first class and second class
Magistrates respectively.

In case of any Chief Magistrate or Metropolitan Magistrate or any first class Magistrate the following
cases may be tried:

1. Offences which cannot be punished with the death penalty, life imprisonment or imprisonment
exceeding 2 years.
2. Theft provided in sections 37, 380 and 381 of the IPC as long as the value of item stolen does not
exceed 200 rupees.
3. Receiving or retaining any stolen property under 200 rupees given in Section 411 of the Indian Penal
Code.
4. Assisting in the concealment of any stolen property under 200 rupees given in Section 414 of IPC.
5. Lurking, trespass breaking in of houses under Section 454 of IPC.
6. Criminal intimidation and insult with intent to provoke under Sections 506 and 504 respectively.
7. Abetment of any of the above offences will also be tried in a summary trial.

In case of Magistrates of Second class the following offence can be tried if the High Court him to do so;

1. Offences which can be punished with imprisonment of less than 6 months with or without a fine.
2. Any offences that can be punished with a fine.
3. Abetment or attempt to commit the above offences.

What procedure is followed in a Summary Trial?

Section 262 of Code of Criminal Procedure provides that a summary trial will follow the same procedure
as a summons trial which is much less formal. The procedure for a summary trial can thus be given as;

Registration of FIR and investigation In the first step of any criminal procedure, an FIR is led after which
the claims made in the FIR are investigated upon and evidence collected. At the end of the investigation,
a police report is filed.

Before the Magistrate. The accused is brought or appears before a Magistrate and the particulars of
the oences must be clearly conveyed to the accused. In case of summary and summons trials, charges
are not framed by writing the charges down.

Plea The accused may either plead guilty or not guilty.

Conviction in case of guilty plea

The Magistrate records the statement of the accused and the accused may be convicted at the
discretion of the Magistrate.

When the accused does not appear before the Magistrate to plead guilty, then he is to send 1000 rupees
along with a letter containing his guilty plea.

Plea of not guilty

In this scenario, the proceedings continue with the trial. The Magistrate hears both the prosecution and
the accused. He also examines all witnesses to the case.

Judgement The accused may either be acquitted or he may be convicted. If he is acquitted, the
Magistrate will record an order of acquittal. Conversely, the accused may be convicted and sentenced

Sentence in case of Summary Trials

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In summary trials, a convict cannot be sentenced to imprisonment for a period of time longer than 3
months.

Judgement The judgement of the Magistrate in cases where the accused pleads not guilty will only
include the following according to Section 264 of CrPC:

1. The substance of the evidences provided.

2. Briefly statement of the reasons why such a finding has been reached by the Magistrate.

What is to be recorded in Summary Trials?

In every summary the following particulars should be recorded according to Section 263 of CrPC:

1. Serial number of case

2. The date on which the offence was committed.
3. The date on which the complaint was made.
4. The name of parents.
5. The name and address of the accused.
6. The offence and the value of the property that was stolen.
7. The plea of the accused and if he has been examined then such examination as well.
8. The findings of the Magistrate.
9. The sentence or the final order of the Magistrate.
10. The date on which the legal proceedings come to an end.
Difference between Summary Trials and other trials

A summary trial deals with cases where the offences are of minor and simple nature whereas more
completed and serious cases are tried in summons or warrant trials.

In a summary trial, the statement of the witnesses are briefly and generally compiled and only the
substance of their depositions are recorded but in other trials, the depositions of each of the witnesses
are carefully recorded in its entirety.

In a summary trial the Magistrate does not have to frame formal charges against the accused but in
other trials, a formal charge sheet has to be drawn up.

The entirety of the evidence need not be recorded in case of summary trials and only a brief outline is
necessary but in case of other trials, it is necessary to record all of the evidence complete

Procedure of trial in summon-cases

Explanation of the particulars of the offence

Section 251 provides that it is not mandatory to frame charges but the section
does not dispense with the explanation of the particulars of the offence when
accused is brought or appear before the Court. This is done to make the
accused cognizant for the allegations made against him. If in case unable to
convey the particulars than this will not vitiate the trial and it will not lead to the
prejudice with the accused as this irregularity is remediable under section 465

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of the code[3]. Under section 251 courts shall ask the accused whether the
accused pleads guilty, and section 252 and 253 needs to comply for conviction
on such plea of guilty.

Conviction on plea of guilty

Section 252 and 253 provides conviction on the plea of guilty. Section 252
provides plea of guilty in general and section 253 provides plea of guilty in case
of the petty cases. In case accused plead guilty, the answer is affirmative than
in accordance with law court will record the plea in the exact words of the
accused on the basis of which accused can be convicted on the Court’s
discretion. If not affirmative than the court needs to proceed further with
Section 254.  If the accused plead guilty, and the charges against him do not
constitute any offence than mere plea will not amount to the conviction of the
accused. As the magistrate has the discretion to convict on the plea or not, if on
plea the accused is convicted than the magistrate shall proceed according to
section 360 otherwise hear the accused on the question of sentence and
sentence him according to law. If the plea of guilty is not accepted than
magistrate shall proceed according to section 254.

Procedure if the accused not convicted on plea

Section 254 provides about both prosecution and defence case if the accused
not convicted on plea under section 252 and 253.

Prosecution case

The magistrate will hear the accused and take all the evidence. In the hearing,
the prosecution will be given chance to open its case by putting facts and
circumstances which constitute the case and by revealing the evidence which he
relied upon to prove the case. The magistrate on the application of the
prosecution, serve summon to any witness to attend and to produce any
document or thing. The magistrate will prepare the memorandum of the
evidence according to section 274.  Same as other trials in summon cases also
the magistrate will comply with section 279 i.e., interpretation of evidence to
the accused and 280 i.e., recording of the demeanor of the witnesses.

Hearing of the defence: – (Defence Case)

After the prosecution evidence under 254 and examination of defence under
section 313, in the continuance of this, the court will proceed with the defence
hearing under section 254(1). In the hearing of the defence means accused will
be asked for accused say against the prosecution evidence. Failure of hearing of
the accused in any case will amount to the fundamental error in the criminal

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trial and it can not be cured under section 465. Evidence produced by the
accused will be recorded in the same manner as in case of prosecution under
section 274, 279, 280. After the submission of the evidence of the defence, he
will be allowed to submit his arguments under section 314.

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Acquittal or conviction

After recording the evidence under 254 the magistrate will acquit the accused if
he finds the accused not guilty. If the accused is guilty than Magistrate shall
proceed according to Section 360 or 325 otherwise, sentence him according to
the law.

                                       Accused appear or brought before the court

                                                                   ⇓

                                     Explanation of the particulars of the offence

                                     ⇓                                               ⇓

Conviction on the plea of guilty                       procedure when not convicted on

a plea

       ⇓                        ⇓                                                     ⇓

 Acquittal           Conviction                            Prosecution hearing and record

of evidence

                                                                                       ⇓  

                                                                   Defence hearing and record of

evidence

                                                                                       ⇓

                                                                 Submission of argument under

section 314

                                                                                       ⇓

                                                                            Acquittal/conviction

Non-appearance or the death of the complainant

According to section 256 on the date fixed for the appearance of the accused
nonexistence of the complainant will empower the court to acquit the accused
unless the court has the reason to adjourn the case to some other day. Section
256(1) is also applicable in case of the death of the complainant↓. In case the

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representative of the dead complainant does not appear for 15 days where the
defendant appeared, the defendant can be acquitted held by the Supreme
Court.[4]

Discharge in case of Summon cases

I summon cases instituted otherwise than the complaint Section 258 authorize
the first class Magistrate, with the prior sanction of the Chief Judicial Magistrate,
to stop the proceeding at any stage. Therefore if he stops the proceeding ‘after
record of the evidence’ than it is the pronouncement of a judgment of acquittal,
and in case stops ‘before the record of the evidence’ it is released which has the
effect of discharge.

It is controversial that in summon case instituted on complaint Magistrate do

not have any power of dropping of the case even if he has no sufficient ground
to proceed against the accused. This is because if the Magistrate does so then
he will recall his own order. Supreme Court said that the issue of process is
interim order of the Magistrate, not the judgment so it can be recalled. No
provision is required to empower the magistrate to drop the case in such
circumstances[5]. In summon cases on complaint Magistrate cannot discharge,
review and recall the order of the issue of the process. There is no dropping of
the case, the trial court has to conclude the trial.[6] In summon cases the
Magistrate of the trial court has no power to drop the proceeding in the absence
of such provision in the law. A person can approach the High Court under
section 482 of Cr.P.C in such circumstances[7]. There is no provision of
discharge in summon cases instituted on complaint accused will be either
convicted or acquitted.[8]

11. When death sentence can be executed? When death sentence can be
suspended?

SUSPENSION OF EXECUTION OF DEATH SENTENCE

1. Section 424 - When an offender has been sentenced to fine only and to
imprisonment in default of payment of the fine and the fine is not paid
forthwith, the Court may

1. order that the fine shall be payable either in fully on or before a

date not more than thirty days from the date of the order, or in two
or three instalments, of which the first shall be payable on or
before a date not more than thirty days from the date of the order
and the other or others at an interval or at intervals, as the case
may be, of not more than thirty days;

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 2. suspend the execution of the sentence of imprisonment and
release the offender, on the execution by the offender of a bond,
with or without sureties, as the Court thinks fit, conditioned for
his appearance before the Court on the date or dates on or before
which payment of the fine or the instalment thereof, as the case
may be, is to be made; and if the amount of the fine or of any
instalment, as the case may be, is not realised on or before the
latest date on which it is payable under the order, the Court may
direct the sentence of imprisonment to be carried into execution at
once.

2. The provisions of Sub-Section (1) shall be applicable also in any case in

which an order for the payment of money has been made on non-
recovery of which imprisonment may be awarded and the money is not
paid forthwith; and, if the person against whom the order has been
made, on being required to enter into a bond such as is referred to in
that Sub-Section, fails to do so, the Court may at once pass sentence of
imprisonment.

12. An appeal, Reference, and Revision are under the inherent rights bestowed on every citizen of the
country. This is the right to be heard. Article 21 of the Indian Constitution provides that every person is
entitled to the right to personal liberty as prescribed under the law. As such, no one should be deprived
of this right except where there is a criminal case against such an individual who is found guilty and
confined to imprisonment. In such instance, the person has a right to appeal against the decision of the
court for an acquittal or a discharge. Appeal only lies from a lower court to a higher court. The purpose
of this Article is to expand on the terms Appeal, Reference, and Revision under the Criminal Procedure
Code and characterize the difference between the three, especially under the Code. Appeal– In lay
terms, Appeal is defined as an application of plea that is brought to a higher court to review the decision
of the lower court. Such application comes as a legal proceeding and cannot be made to the court on
the same level as the trial court but to a higher court. For instance, an aggrieved person can file an
appeal against the decision of the Magistrate Court to the High Court of the State, he or she can file an
appeal against the decision of a High Court to the Court of Appeal, and likewise to the Supreme Court.
The decision of the Supreme Court is final and there is no appeal afterward. Under the Code, sections
372 – 394 govern Appeal. Each of these sections shall be considered accordingly. But before diving into
it, it is pertinent to note that an appeal in criminal cases may either be to overturn the decision of the
lower court or to affirm the decision and lower the sentence or conviction. In this case, the aggrieved
person has been convicted of an offense but the lower court failed to impose the required sentence
prescribed by the law for such an offense. Thus, only a person affected or aggrieved by a decision of the
court may appeal against such decision. Section 372 of the Criminal Procedure Code, 1973 stipulates
that appeal shall only lie from the lower court to the higher court if it is provided for in the Code. Section
374 provides from appeals from the court convictions. It stipulates that appeal shall lie from the High

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Court to the Supreme Court for convictions. An appeal also can lie from a Court of Sessions to the High
Court for a conviction that is more seven (7) years. Appeal, Reference, and Revision Under The Criminal
Procedure Code An appeal shall lie from the Magistrate Court to the Session in certain cases provided
under section 325. Section 375 stipulates that there shall not be any appeal in any case where the
accused pleaded guilty and was convicted on that plea especially if the conviction is by a High Court,
Magistrate Court or Court of Sessions except if the appeal bothers on the legality or extent of the
conviction or sentence. Section 376 adds that there shall be no appeal for petty cases. Petty cases are
offenses that are treated as simple offenses or misdemeanor. Instances of petty cases are conviction by
the High Court for a term of imprisonment not exceeding six (6) months or a fine not exceeding 1000
rupees. Also, a conviction by the Metropolitan Magistrate for a term of not more than three (3) months
or a fine of not more than 200 rupees; and, a conviction by the Magistrate for a fine, not more than 100
– 200 rupees. Section 377 covers appeal by the State government on the sentence or conviction that
bothers on the ground of inadequacy. Section 378 covers appeal in cases of acquittal. In such instance,
the cases can only be entertained or heard with the leave of the court. In Chandrappa vs the State of
Karnataka, the Appellate court laid down the guiding principles for appeals against acquittals. The
principles are as follows: Where the fact of the case is obviously wrong and has warranted a miscarriage
of justice. In this instance, an appeal can be held on the acquittal. This principle was established in
Bhagirath, 35 CR LJ 1367. In an instance where the trial court failed to draw a clear distinction between
an unquestionable inference from the facts of the case. Example, Raothula 40 CR LJ 458. Where the trial
court overlooked important evidence in adjudicating the case which results in a wrong decision or a
miscarriage of justice. Example, Dharnadas, A1960 SC 734. When the facts of the case tendered were
erroneously rejected as evidence by the trial court. An instance is Dhulaji, A1963G 234. Section 379
provides for an appeal against the sentence or conviction of the High Court in cases such as: A life
imprisonment An imprisonment for ten (10) years or more A death sentence In such instances, an
appeal shall lie directly to the Supreme Court. Other sections pertaining to Appeal not discussed are the
stipulations and provisions of the procedures and timeline for appeal by an aggrieved person to various
courts. ReferenceReference in lay terms is a consultation of various sources of information from the trial
court. Reference is simply an application made by the trial court to a higher court for the explanation of
an Act, Legislation, and Regulation pertaining to the case at hand. As such, there will be a thorough
examination of the Laws to find out if there is a misunderstanding or a misapplication or a reevaluation
of the facts of the case in tandem with the application of the law. Reference is covered under Chapter
XXX particularly sections 395 – 396 of the Criminal Procedure Code. Section 395 defines a Reference as
where there is a case before a trial court and such case involves a question pertaining to the validity of a
Regulation, Ordinance or Act or any provisions of the Regulations, Ordinance or Act, which is necessary
for the determination of the criminal case. Such Act, Regulations or Ordinance may be inoperative or
invalid but a higher court such as the Supreme Court or the High Court has not declared it so. As such,
the lower court or the trial court will refer to the higher court for its reason or opinion. Such opinion or
reason may form the basis of the Court’s decision. In such instance, the accused may be committed to
prison or set on bail pending the return of the reason or opinion by the higher court. Section 396 of the
Criminal Procedure Code covers for the party that may bear the cost when the reason or opinion sought
for on point of law is returned back to the trial court. Also, it stipulates on how the pending case is
determined subject to the return of such opinion or reason by the trial court. RevisionRevision is simple
terms is to correct or alter a decision already made. It is a two-way traffic. That is, a decision of the court

25
can be revised by the trial or lower court or by the higher or supreme court. The main aim of both sides
is to revise, alter, correct, review the decision already made by the trial court. The power to revise a
decision by the higher court is discretionary and as such, it does not confer or impose on the higher
court an order to revise every decision brought before it. In the case of Pranab Kumar v. the State of
WB, the Supreme Court was of the view that revision powers are not a conferred right on the litigants. It
is put in the code to serve as a check and also to ensure that the High Court has the power to see that
justice is served in accordance with the rules and laws. Revision ensures that the court does not abuse
its powers or exceed its jurisdiction provided for by the Code. For instance, section 362 of the Criminal
Procedure Code provides that no court has the right to review or alter its final judgment or final order or
final decision once it has been signed. The only exception is to correct a clerical, arithmetic or
grammatical error. Therefore, the power to review may vest in the superior court but the power to
revise rests on the lower court. The power to review or revised cannot be exercised when there is a
pending appeal on the case in a higher court. Revision is covered under Chapter XXX, sections 397 – 402
of the Code. The Sections provides as follows: Section 397 – the Court has the power to call for the
record of proceedings of its court or any inferior courts. Section 398 – Upon examining the record of
proceedings, the Judge has the right to order for an inquiry into the decision of a case. Sections 399 –
400 – the Session Judge have the power to revise a decision and he or she can call additional session
judges for the revision of the decision. Section 401 – the High Court has the power to revise the cases
before it or before the inferior or lower courts. Section 402 – the High Court also has the power to
transfer or withdraw the revision cases before it. Difference between an Appeal, Reference, and
Revision Appeal Reference Revision It is under Chapter XXIX of the Criminal Procedure Code It is under
Chapter XXX of the Criminal Procedure Code It is under Chapter XXX of the Criminal Procedure Code It is
covered in sections 372 – 394 of the Code It is covered in sections 395 – 396 of the Code It is covered in
sections 397 – 402 of the Code An Appeal lies to the higher court on points of facts and law. Reference
lies to the higher court on points of law. Revision lies to both the lower court and the higher court on
already adjudicated matters. Appeal Starts upon the determination of the case. Reference occurs while
the matter is still pending in court. Revision starts under the final judgment or final order or final
decision of the court. An Appeal is to plea or petition against the decision passed by the lower court.
Reference is to consult the higher court on insolate or invalid Laws, Acts, Regulations or Ordinance
pertaining to the case at hand. Revision is to revise, review, alter or amend a grammatical, clerical or
arithmetical error by the trial court or a higher court. An Appeal can be filed by an aggrieved person or
the accused with the leave of the court in certain cases. Reference is initiated by the trial court to the
higher court. Revision can be initiated by either the trial court suo moto or by the higher cou

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