THE CODE OF CRIMINAL

PROCEDURE, 1973
Act 2/1974
An Act to consolidate and amend the law relating to Criminal Procedure
Came into force on 1st April, 1974
It extends to the whole of India except Jammu & Kashmir
• OBJECT OF PROCEDURAL LAW
• Substantive law and procedural law
• Substantive law defines offences and provides punishments for such offences
• Enforcement machinery is required to detect, prosecute and punish offenders
• Meticulous definition of offences -- ‘theft’, ‘murder’, ‘rape’ and deterrent
punishment for such offences would remain empty unless there is an
effective mechanism for enforcement of substantive law.
• CRPC is complementary to substantive criminal law; It is designed to ensure
the process of administration of criminal law.
• It creates the necessary machinery to detect the crime, arrest the suspects,
collect evidence, determine the guilt or innocence of the suspects and to
impose proper punishment on the guilty.
• Criminal law to be strong and effective, the functionaries investigating and
adjudicating offences must have necessary discretionary powers.
• Code gives such discretionary powers and also provides safeguard against
possible harm and violation of human rights of the innocents.
• Code strikes a balance between need to give discretionary powers to
functionaries under Code and possible misuse or abuse of such powers.
• As observed by the Supreme Court in Iqbal Ismail Sodawala v. State of
Maharashtra (1075)3 SCC 140 and Rani Kusum v. Kanchan Devi, (2005) 6
SCC 705:
• ‘it is the procedure that spells of the difference between the rule of law and
the rule of whim and caprice’.
• IMPORTANCE OF CRIMINAL PROCEDURE
• A) It is more constantly used and affects a greater number of persons than
any other law.
• B) the subject-matter dealt with by criminal procedure involves human values
to a greater degree than any other laws.
• C) Procedural law is complementary to the substantive law. Failure of
procedural law would considerably affect the substantive criminal law which
in turn substantially affect the protection that it gives to the society.
• Therefore, ‘too much expense, delay and uncertainty in applying law of criminal
procedure would render the best of penal laws useless and oppressive’.
• EXTENT AND APPLICABILITY OF CRPC.
• Extends to the whole of India, except the State of J & K.
• Chapters VIII, X and XI alone apply to the State of Nagaland and the tribal areas.
However, State Governments may apply those provisions to Nagaland and tribal
areas. – reason, the peculiar conditions prevailing in those areas.
• Even though the provisions are not required to be followed strictly, the standard
of fairness implicit in Art. 21 of the Constitution must be satisfied. (Zarzoliana v.
Govt. of Mizoram, 1981 Cri LJ 1736.
• Cr. P.C. passed by Parliament is included in the Concurrent List in Seventh Sch.
• State Legislatures may modify the provisions in their application to that State.
• Though the Code provides for a uniform criminal procedure applicable throughout
India, Secs. 1, 4 and 5 and provisions of Constitution of India make it sufficiently
flexible to adjust itself to the special local needs and conditions.
• TERRITORIAL DIVISIONS
• Entire territory of India consists of States.
• Every State is either a single Sessions Division or consist of Sessions divisions
• A Session division may be a single District or consist of districts
• A District may be further divided into sessions divisions
• Sessions divisions may be further divided into Sessions sub Divisions
• The number of divisions, districts, and sub-divisions of a district, may be altered by
the State Govt. after consultation with the High Court of that State– S. 7.
• Considering the needs of large cities like Mumbai, Calcutta, Delhi, a city with a
population of one million or more has been constituted as a separate territorial
unit known as Metropolitan area.
• State Govt. has the power to extend, reduce, or alter the limits of such area or
specify the lesser of such area – (S. 8).
• Every Metropolitan area is to be a separate sessions division and district – Prov. to
S. 7(1)
• S. 2 Definitions:
• (a) ‘bailable offence’ means an offence which is shown as bailable in the First
schedule or which is made bailable by any other law.
• ‘Non bailable’ offence means any other offence
• (b) ‘charge’ includes any head of charge when the charge contains more heads than
one.
• (c) ‘cognizable offence’ means an offence for which, and ‘cognizable case’ means a
case in which, a police officer may, in accordance with the First Schedule or under
any other law for the time being in force, arrest without warrant
• (l) ‘Non cognizable offence’ means an offence for which and ‘non cognizable case’
means a case in which, a police officer has no authority to arrest without warrant.
• (d) ‘Complaint’ means any allegation made orally or in writing to a Magistrate, with
a view to his taking action under this Code, that some person, whether known or
unknown, has committed an offence, but does not include a police report.
• Explanation: A report made by a police officer in a case which discloses, after
investigation, the commission of a non-cognizable offence shall be deemed to be a
complaint; and the police officer by whom such report is made shall be deemed to
be the complainant.
• (e) ‘High Court’ means (i) in relation to any State, the High Court for that
State; (ii) in relation to a Union territory to which the jurisdiction of the High
Court for a State has been extended by law, that High Court. (iii) in relation
to any other Union territory, the highest Court of criminal appeal for that
territory other that the Supreme Court of India.
• (g) ‘Inquiry’ means every inquiry, other than a trial, conducted under this
Code by a Magistrate or Court.
• (h) ‘Investigation’ includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person (other
than a Magistrate) who is authorized by a Magistrate in this behalf.
• (i) ‘judicial proceeding’ includes any proceeding in the course of which
evidence is or may be legally taken on oath.
• (j) ‘local jurisdiction’, in relation to a Court or Magistrate, means the local
area within which the Court or Magistrate may exercise all or any of its or his
powers under this Code and such local area may comprise the whole of the
State or any part of the State, as the State Government may, by notification,
specify
• (n) ‘offence’ means any act or omission made punishable by any law for the
time being in force and includes any act in respect of which a complaint may
be made u/s. 20 of Cattle trespass Act, 1871.
• (o) ‘Officer in charge of a police station’ includes, when the officer in charge
of the police station is absent from the station-house or unable from illness
or other cause to perform his duties, the police officer present at the station-
house who is next in rank to such officer and is above the rank of constable,
or when, the State Government so directs, any other police officer so present.
• (p) ‘Place’ includes a house, building, tent, vehicle and vessel
• (q) ‘Pleader’, when used with reference to any proceeding in any Court,
means a person authorized by or under any law for the time being in force,
to practice in such Court, and includes any other appointed with the
permission of the Court to act in such proceeding.
• (u) ‘Public Prosecutor’ means any person appointed u/s. 24 and includes any
person acting under the directions of a Public Prosecutor.
• (r) ‘Police report’ means a report under S. 173(2)
• (s) ‘Police station’ means any post or place declared generally or specially by
the State Government to be a police station, and includes any local area
specified by the State Government in this behalf.
• (x) ‘warrant case’ means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years.
• (w) ‘summons case’ means a case relating to an offence, and not being a
warrant case.
• CLASSIFICATION OF OFFENCES
• There are three types of classification of offences under the Code
• I COGNIZABLE OFFENCES AND NON COGNIZABLE OFFENCES
• A “cognizable offence” means an offence for which a police officer may, in
accordance with the First Schedule of the Code or under any other law,
arrest without warrant” S. 2(c).
• “Non cognizable offence” means an offence for which a police officer has no
authority to arrest without warrant – S. 2(l)
• First Schedule refers to all the offences under the IPC and divides them into
cognizable and non-cognizable categories.
• Basis for this categorization is diverse considerations.
• Broadly, all serious offences are considered cognizable offences
• Offences under laws other than IPC, punishable with imprisonment for three
years or more are shown as cognizable offences in the First Schedule and
those offences punishable with less than three years are shown as non
cognizable.
• A police officer can arrest the accused person without any warrant or
authority issued by a Magistrate. He can investigate into such a case without
any orders or directions from the Magistrate. (Ss. 156(1) and 157).
• The police officer is under a legal duty to exercise his power in respect of a
cognizable offence (u/s. 157 of the Code and Ss. 23 and 29 of Police Act,
1861).
• In the case of non cognizable offence, generally speaking, a police officer
cannot arrest without a warrant. Police officer has neither the duty nor the
power to investigate into such offence without the authority given by a
Judicial Magistrate. (S. 155(2).
• Exception: U/s. 42, if a non cognizable offence is committed in the presence
of a police officer, and the person committing the offence refuses to give his
name and address, the police officer can arrest him without warrant with a
view to ascertain his real name and address.
• Non cognizable offences are considered more in the nature of private wrongs.
Collection of evidence and prosecution of offender are left to the initiative
and efforts of private citizens.
• If a Judicial Magistrate considers it desirable to investigate into a non
cognizable offence, he can order the police to do so.
• In such a case, police officer will have all the powers in respect of
investigation, as he would have exercised if the case were a cognizable one
(except power to arrest without warrant) – Ss. 155(2) and (3).
• If the case relates to two or more offences of which at least one is cognizable, the
case shall be treated as cognizable– S. 155(4).
• II BAILABLE AND NON BAILABLE OFFENCES
• “Bailable offence” means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law. (S.2(a))
• “Non-bailable offence” means any other offence.
• No criterion is given to determine whether any particular offence is bailable or
non-bailable.
• The general proposition is that by and large serious offences are considered as
non-bailable and others as bailable.
• Under First Schedule, offences under laws other than IPC which are punishable
with imprisonment for three years or more, have been considered “non-bailable”
and others punishable with less than three years imprisonment are considered as
“bailable offences”- subject to any contrary rule in any other law.
• When a person accused of a bailable offence is arrested or detained without
warrant, he has a right to be released on bail. In the case of arrest in non bailable
offences, release on bail is left to the discretion of authorities concerned.
• III SUMMONS CASES AND WARRANT CASES
• A “warrant case” means a case relating to an offence, punishable with death,
imprisonment for life or imprisonment for a term exceeding two years– S. 2(x)
• “summons case” means a case relating to an offence, not being a warrant case – S.
2(w).
• Basis of the classification is the seriousness of the offence.
• This classification is useful to determine the type of trial procedure to be adopted
in the case.
• Trial procedure for warrant case is much elaborate that for a summons case.
• In a summons case, summons is issued and in a warrant case, a warrant may be
issued—S. 204. Thus, the classification assumes importance at the stage of issuing
process to the accused person.
• IV COMPOUNDABLE AND NON COMPOUNDABLE CASES
• Crime is essentially a wrong done to the society.
• Therefore, a compromise between the accused and the victim is not enough to
absolve the accused from liability.
• Where the offence is of a private nature and relatively less serious, the Code
of Criminal Procedure considers it expedient to recognize those offences as
compoundable.
• Offences given in the table under S. 320(1) are compoundable.
• Table under S. 320(2) contain offences which can be compounded but only
with the permission of the Court.
• Rest are non compoundable offences. Such offences cannot be compounded
even with the permission of the court—Ramlal v. State of J & K (1999)2 SCC
213. In Gian Singh v. State of Punjab (2012) 10 SCC 303, the Supreme
Court held that High Courts could quash the proceedings involving non-
compoundable offences under S. 482, approving the decision in B.S. Joshi v.
State of Haryana, (2003) 4 SCC 675.
• MAIN SEGMENTS OF CRIMINAL PROCEDURE
• It provides the mechanism for the administration of criminal.
• Its core object is to ensure for the accused a full and fair trial in accordance
with the principles of natural justice” – Iqbal Ismail Sodawala v. State of
Maharashtra, (1975) 3 SCC 140.
• Investigation is another segment, which is the precursor of trial procedure. It
includes (a) information as to the commission of any crime, (b) detection and
arrest of the suspected offender, and (c) collection of evidence relating to the
commission of the offence, which may consist of (1) examination of various
persons, and (2) the search of places and seizures of things and documents
useful as evidence in the trial.
• Investigation includes the process whereby the case is brought before the
court for trial.
• This is the segment of the pre-trial procedures.
• Investigation includes formation of opinion as to the existence of case and
drawing up of investigation report– P.V. Vijayaraghavan v. CBI (1984) Cri LJ
1277 (Ker) ; Pappa Rao v. State, 1985 Cri LJ 546 (Cal).
• At the conclusion of trial, accused is found guilty or innocent.
• Code provides for appeal and review of the decision of the trial court.
• Review procedures are thus a separate segment of criminal procedure
• There is also procedure for execution of final decision of the court.
• The Code has also formulated certain rules for determination of jurisdiction
of the police and courts in respect of any offence under investigation or trial.
• In this intermediate segment, the rules are applicable both in pre-trial
procedures and trial procedures
• Code contains provisions for release on bail of persons under arrest or
detention pending pre-trial, trial, or review proceedings.
• Apart from the above segment, Code contains provisions dealing with
• 1) prevention of offences (Ss. 106-124, 129-132, 144-153)
• 2) maintenance of wives, children and parents (Ss. 125-128)
• 3) public nuisance (Ss. 133-143)
• MAIN FUNCTIONARIES UNDER THE CODE
• 1. Police
• 2. Prosecutors
• 3. Defence Counsel
• 4. Magistrates
• 5. Judges of Higher Courts
• 6. Prison Authorities and correctional services personnel
• POLICE:
• Police force is an instrument for prevention and detection of crime
• Every State Govt. has established and enrolled police force under the Police
Act, 1861.
• At the head of Administration is the Inspector General of Police (DGP).
• Every District has a Superintendent of Police under the general control and
direction of the District Magistrate (usually the District Collector)
• The Code has conferred specific powers on the police officers– say, power to
arrest
• Police Officer in charge of a Police Station (Station House Officer) are given
wide powers, because they are required to play a pivotal role in the
investigation and prevention of crime.
• But they do not have power to look into complaints which do not contain
allegations of commission of cognizable offences.
• Police Officers superior in rank can exercise the powers of Station House
Officers throughout their local area of jurisdiction.
• U/s. 177 and 178, police has wide jurisdiction to inquire into a complaint
which has been filed in another jurisdiction.
• PROSECUTORS
• Crime is a wrong done not only against the individual victim but also against
the State. It is therefore the responsibility of the State to prosecute the
offender.
• Central Govt. and every State Govt. have power to appoint prosecutors for
conducting prosecutions and other criminal proceedings on their behalf.
• Public Prosecutors are appointed in the High Court, Sessions Court and Courts of
Magistrates. Classification of prosecutors appointed u/s. 24 and 25 are as under:
• 1. Public Prosecutor, High Court. Advocate having 7 years practice or more is
appointed by the Central or State Govt. as Public Prosecutor in consultation with
the High Court.
• 2. Additional Public Prosecutors are similarly appointed
• 3. Public Prosecutors are appointed for District at the Sessions Court. Persons with
the same qualification as Public Prosecutor at the High Court are appointed by the
Central/State Govt. Such appointments are made from a panel prepared by the
District Magistrate in consultation with the Sessions Judge.
• 4. Additional Public Prosecutors are also appointed similarly at the District level.
• 5. Special Public Prosecutors may be appointed for any Court from advocates
having practice of 10 years or more for the purpose of conducting any case or
class of cases.
• 6. Assistant Public Prosecutors are appointed at Magistrates Courts by the
Central/State Govt. Any person other than a police officer can be appointed to the
post. If APP is not available, District Magistrate may appoint any person to be APP
including a Police Officer who has not taken part in the investigation of that
offence and he is not below the rank of Inspector.
• Every trial before the Sessions Court, prosecution shall be conducted by the
Public Prosecutor.
• Though no similar provision is there in the Code regarding conduct of
prosecution before the Magistrate’s Court, the prevailing practice is that
prosecution in respect of cases initiated on police report is conducted by the
Asst. Public Prosecutor.
• Prosecution in the case of a private complaint is either conducted by the
complainant himself or by his duly authorized counsel. If the case involves
public interest, the State may appoint APP to prosecute the case.
• Public Prosecutor or APP in charge of a case may appear and plead without
any written authority before any court where the case is dealt with – S.
301(1)
• Advocate General or Govt. Advocate or Public Prosecutor or APP shall have
the right to conduct prosecution and in such case, no permission of the
Magistrate is necessary – S. 302(1)
• Thus, Public Prosecutor or APP may intervene in private complaints.
• NATURE OF DUTIES OF PROSECUTOR
• The importance and nature of office of Public Prosecutor has been
highlighted by the Supreme Court in Srilekha Vidyarthi v. State of U.P.
(1991)1 SCC 212.
• It is a public office of much importance. Duty of Prosecutor in a criminal trial
is not merely to secure conviction, but to place before the court whatever
evidence is in his possession, whether it be in favour or against accused and
leave it to the court to decide upon all such evidence whether the accused is
guilty of offence alleged.
• In Vijay Shankar Mishra v. State of U.P, Supreme Court deprecated the
present system of pollical appointments.
• Appointment of a senior police officer as head of the prosecution agency was
severely criticized in Krishna Singh Kundu v. State of Haryana, 1989 Cr. LJ
1309.
• The 2005 Amendment to the Code envisages establishment of a Directorate
of Prosecution in every State. Advocates having 10 years’ practice are
appointed as Director of Prosecution and Dy. Director of Prosecution.
• Director of Prosecution is in charge of the Directorate. All Prosecutors
working in the High Court would directly work under him.
• Prosecutors including Special Prosecutors functioning in the District Courts
and APPs would work under the Deputy Director. They will work under the
Director of Prosecutor
• Director and Dy. Director are appointed by the Home Department of the
State Govt. with the Concurrence of the Chief Justice of the High Court.
• The above provisions are not applicable to the Attorney General when he
acts as Public Prosecutor (Act 25 of 2005)
• DEFENCE COUNSEL
• India follow the adversary system of criminal trial.
• State employs a competent prosecutor to prosecute the accused
• Accused would employ an equally competent defence counsel to challenge
the evidence of the prosecution. – Report of Expert Committee on Legal Aid.
• The Constitution (Art. 20(1) and the Code (S.303) have conferred on the accused
the right to consult and to be defended by a legal practitioner of his choice.
• This right would be empty if the accused has no means to engage a counsel for his
defence owing to poverty or indigent conditions.
• This amounts to denial of fair trial. S. 304(1) provides that in a trial before the
Sessions Court, the accused is not represented by a pleader and where it appears
to the Court that accused has no sufficient means to engage a pleader, the court
shall assign a pleader for his defence at the expense of the State.
• The Code empowers the State Govt. to extend the application of the above
provision to any class of trials before other courts in the State – S. 304(3)
• In Khatri (II) v. State of Bihar, (1981) 1 SCC 627 and Sukh Das v. Union Territory of
Arunachal Pradesh, (1986) 2 SCC 401, Supreme Court held that Art. 21 of the
Constitution implicitly requires the State to make provision for grant of free legal
services to accused who is unable to engage a lawyer on account of reasons such
as poverty, indigence or incommunicado situation.
• There are several schemes enabling the indigent accused to get free legal aid.
• Legal Services Authorities Act, 1987 enable the judiciary to provide legal
representation to indigent accused.
• In Mohammed Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584, it was
observed that If services provided are found wanting, the trial may be vitiated.
• THE COURTS
• (1) Supreme Court: Powers and jurisdiction of the Supreme Court are contained in
Arts. 124, 129, 130, 132, 134, 136, 137, 138, 139, 141, 144, 145
• and Sections 374 and 379 Cr. P.C.
• S. 406 of the Code confers power on the Supreme Court to transfer cases and
appeals in the interest of justice.
• Supreme Court also exercises appellate jurisdiction in criminal cases under the
provisions of Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970.
• (2) High Courts: Constitution provides for establishment of a High Court for each
State. Arts. 214, 215, 227 and 228 of the Constitution generally define the
jurisdiction of such High Court.
• High Court has got power of superintendence over all the courts throughout
the State – Art. 227 – Observations in R.K. Anand v. Registrar, Delhi High
Court (2009) 8 SCC 106.
• High Court is given various powers including Reference, Appeal, Revision and
transfer of cases. U/s. 482, High Court has inherent power to prevent the
abuse of process of any court, or to secure the ends of justice.
• S. 483 of the Code provides that superintendence over the Courts of Judicial
Magistrates is to be so exercised so as to ensure an expeditious and proper
disposal of cases in such courts.
• Sessions Court: U/S. State is to establish a Sessions for every sessions
division, presided over by a Judge appointed by the High Court. High Court
may also appoint Additional Sessions Judges and Assistant Sessions Judges
to exercise jurisdiction in the Sessions Court.
• Under S. 11(1), Assistant Sessions Judge is subordinate to the Sessions
Judge.
• (4) Courts of Judicial Magistrates: In every District, State Govt. may, after
consultation with the High Court, establish as many Courts of Judicial
Magistrates of the first Class and of the second class as it may consider
necessary.
• State Govt. may also establish after consultation with the High Court, for any
local area, one or more Special Courts of Judicial Magistrates of the first class
or of the second class to try any particular case or particular class of cases.
• U/s. 11(1) where special Court is established, no other Court of Magistrate in
the local area shall have jurisdiction to try any such case or class of cases.
• U/s. 11(2), the Presiding officers of such courts including special courts are
appointed by the High Court.
• S. 11(3) provides that the High Court may also confer powers of a Judicial
Magistrate on any member of the Judicial Service of the State functioning as
a judge in a civil court.
• S. 12(1) requires the High Court to appoint a Judicial Magistrate of the first
class to be the Chief Judicial Magistrate (CJM) of the District.
• CJM is to guide, supervise and control other Judicial Magistrates and also try
important cases.
• U/s. 12(2), High Court may appoint any Judicial Magistrate of the first class
to be an Additional CJM. Such Magistrate shall have all or any of the powers
of the CJM as the High Court may direct.
• U/s. 12(3), for any sub division of a District, High Court may appoint any
Judicial Magistrate of the first class as the Sub Divisional Magistrate who
shall have powers of supervision and control over the work of the Judicial
Magistrates in the sub division.
• U/s. 14, unless defined differently by the CJM, the local jurisdiction and the
powers of a Judicial Magistrate would extend throughout the district. In
practice, every Judicial Magistrate has been given jurisdiction over the area
of one or more police stations.
• As per S. 15(1), CJM shall be subordinate to the Sessions Judge. Every other
Judicial Magistrate shall, subject to the general control of the Sessions Judge,
be subordinate to the CJM.
• (5) Courts of Metropolitan Magistrates: In Metropolitan area, State
Government may after consultation with the High Court establish Courts of
Metropolitan Magistrates at such places and in such numbers as it thinks
necessary.
• Presiding Officers of those Courts shall be appointed by the High Court
• U/s. 16, the jurisdiction and powers of every such Magistrate shall extend
throughout the metropolitan area.
• In every Metropolitan area, High Court shall appoint a Metropolitan
Magistrate as Chief Metropolitan Magistrate (CMM).
• It may also appoint Additional Chief Metropolitan Magistrates. ACMMs shall
generally have all the powers of CMM.– S. 17
• CMM and ACMM shall be subordinate to Sessions Judge and every other
Metropolitan Magistrate, subject to the general control of Sessions Judge, be
subordinate to the CMM.-S. 19.
• (6) Special Judicial or Metropolitan Magistrates: In any District or
Metropolitan area, High Court on the request of the Govt. may confer upon
any government servant or retired government servant (possessing such
qualifications or experience in relation to legal affairs specified in the rules
made by the High Court) all or any of the powers of a Judicial Magistrate or
of a Metropolitan Magistrate in respect of particular cases or classes of
cases. Such appointment shall be only for a period of one year at a time—
Ss. 13 and 18
• In Kadra Pahadiya v. State of Bihar, (1997) 4 SCC 287 upheld the
constitutional validity of sections 13(1) and 18(1) and also it is not violative
of Art. 14. Supreme Court emphasized that only persons with necessary
qualifications and experience in relation to legal affairs are appointed.
• (7) Courts of Executive Magistrates: Policy of separation of judiciary from
executive has been adopted in the Code. The Code has created a separate
category of courts distinct from Courts of Judicial Magistrates. The object is
to ensure independent functioning of the judiciary free of all suspicion of
executive influence and control.
• Judicial Magistrates and Metropolitan Magistrates are under the control of
the High Court.
• Executive Magistrates are kept under the control of the State Government.
• Functions which are essentially judicial in nature are the concern of Judicial
Magistrates.
• Functions which are “police” or “administrative” in nature are the concern of
the Executive Magistrates.
• In every District and Metropolitan area, State Govt. may appoint Executive
Magistrates and appoint one of them to be the District Magistrate.
• It may appoint Additional District Magistrate (ADM) and for a sub division
Sub Divisional Magistrate (SDM)
• State Govt. may, by general or special orders, delegate its powers u/s. 20(4)
of appointing Sub Divisioal Magistrates, to the District Magistrate-S. 20(4A)
inserted by Act 25 of 2005.
• This provision would not affect conferring magisterial powers of executive
nature on a Commissioner of Police, (S.20)
• State Govt. may also appoint Special Executive Magistrates for particular area
or for performing particular functions of an Executive Magistrate.
• The jurisdiction and powers of every Executive Magistrate extends
throughout the district or metropolitan area, unless otherwise defined by the
DM –S. 22
• All Executive Magistrates other than ADM shall be subordinate to the DM.
• Executive Magistrates exercising powers in a sub division shall also be
subordinate to the SDM, subject to the general control of the DM. – S. 23
• In certain matters, Executive Magistrates are subordinate to the District
Court-Mansur v. State M.P., 1986Cr. LJ 57(MP).
• Heirarchy of criminal courts and their powers to pass sentences in Figure 1
next page and Heirarchy of Executive Magistrates are shown in Figure 2:
• 5. PRISON AUTHORITIES AND CORRECTIONAL SERVICES PERSONNEL:
• At the conclusion of the trial, if the accused is found guilty, the court has to (1)
pass sentence on him, or (2) to deal with him under probation laws or other
special laws for the reformation and rehabilitation of the offender—Ss. 235(2),
248(2), 255(2), and Ss. 360 and 361.
• The sentence passed by the court shall be executed in accordance with the
provisions of the Code.
• There are, however, no specific provisions in the Code for creation, working and
control of any machinery for the purpose and depends upon Prisons Act, 1894,
Prisoners Act, 1900; Borstal School Act, etc.
• Machinery need for correctional services are contained in Probation of Offenders
Act, 1958, Borstal School Acts; Reformatory School Act, 1897 etc.
• In view of S. 361 mandating greater emphasis on use of Probation of Offenders
Act and other laws meant for treatment, training and rehabilitation of young
offenders, the need for correctional service would increase considerably.
• Unit II – Pre-trial procedure
• DUTY TO INFORM AND ASSIST THE POLICE
• Every person should report to the authorities if he has any information as to
the commission of an offence. This is to facilitate and detect crime.
• It is however neither necessary nor advisable to create a legal duty to give
information to the police in respect of all and sundry offences.
• Scope of duty to inform the number and nature of offences is not quite easy
to determine and has varied from time to time.
• Every person aware of commission (or intention) of any other person to
commit any offence mentioned in S. 39 should inform the nearest Magistrate
or police officer.
• The person is exempted if he has a reasonable excuse for not giving
information. Burden of proving existence of excuse on that person.
• Intentional omission to give information required by S.39 renders the person
liable to punishment u/s. 176 IPC.
• Duty is in respect of following offences under IPC:
• 1. certain offences against the State, viz., Ss. 121 – 126, 130,
• 2. certain offences against public tranquility viz., Ss. 143-145, 147, 148
• 3. offences relating to illegal gratification viz., Ss. 161-165
• 4. offences relating to adulteration of food and drugs viz., Ss. 272 – 278
• 5. offences affecting life viz., Ss. 302 – 304
• 6. offences relating to kidnapping for ransom – S. 364A
• 7. Aggravated form of theft as mentioned in S. 382
• 8. offences of robbery and dacoity – Ss. 392 – 399 and 402
• 9. aggravated form of criminal breach of trust – S. 409
• 10. offences of mischief against property – 431 - 439
• 11. offence of house-trespass – S. 449-450
• 12. offence of lurking house-trespass – Ss. 456 – 460
• 13. offences relating to currency notes and bank notes – Ss. 489A-489E.
• S. 37 requires every person to give reasonable assistance to police or
Magistrate if such assistance is demanded:
• 1. in taking or preventing escape of any other person whom such Magistrate
or police officer is authorized to arrest
• 2. in the prevention or suppression of a breach of peace; or
• 3. in the prevention of any injury attempted to be committed to any railway,
canal, telegraph or public property.
• Intentional omission to assist amounts to an offence punishable u/s. 187 IPC
• S. 40 casts a further duty on village officers and village residents to giving of
information as to sudden and unnatural deaths, presence of any notorious
receiver or vendor of stolen property, presence of any thug, robber, escaped
convict, proclaimed offender etc.
• Intentional omission to give information u/s. 40 is also punishable u/s.176
and 202.
• INFORMATION TO THE POLICE
• (i) In respect of cognizable offence—Any person aware of the commission of
any cognizable offence may give information to the police and thereby set
the criminal law in motion.
• Such information is to be given to the SHO having jurisdiction to investigate
• Information so received shall be recorded in such form and manner provided
in S. 154. Section is intended to ensure making of an accurate record of
information given to police. According to S. 154:
• (a) if information is given orally to the SHO, it shall be reduced in writing by
the officer himself or under his direction
• (b) if information is given in writing, or if reduced to writing, it shall be
signed by the informant.
• (c) when information is given by a woman against whom any of the offences
u/S. 326A, 326B, 354, 354A to 354D, 376, 376A to 376E or 509 is
alleged to have been committed or attempted,
• such statement shall be recorded by a woman police officer and if woman
police officer is not available, services of any woman govt. servant can be
utilized to record statement.
• Statement of a woman, physically or mentally disabled against whom any
sexual offence is alleged to have been committed shall be recorded with the
help of an interpreter or special educator and such recording shall be
videographed.
• (d) information as recorded in writing shall be read over to the informant
• (e) substance of the information shall then be entered, by the police officer,
in a book to be kept by such officer in the form prescribed by the State Govt.
This is called ”Station Diary” or “General Diary”.
• (f) a copy of the information as recorded shall be given forthwith, free of cost
to the informant.
• (g) If the SHO refuses to record the information, any person aggrieved by
such refusal may send, in writing and by post, substance of information to
the Supdt. Of Police concerned.
• If Supdt. Is satisfied that commission of a cognizable offence is disclosed by
the information, he shall either investigate the case himself or direct
investigation to be made by any police officer subordinate to him. Such
officer shall have all the powers of an SHO in relation to that offence.
• Information as recorded u/s. 154 is referred to as First Information Report
(FIR). FIR need not contain every detail of the case—Umar Mohammed v.
State of Rajasthan (2007) 14 SCC 711.
• Evidentiary value of FIR is far greater than any of the other statements
recorded by the police during investigation. The question whether a
statement is an FIR or is one made after receipt of FIR assumes importance.
In State of A.P. v. V.V. Panduranga Rao, (2009) 15 SCC 211, Supreme Court
ruled that the fact that the information was first in point of time does not
clothe it with the character of FIR.
• More than one person may go at about the same time and make statements
to the police about the same cognizable offence. Police Officer has to use
common sense and record one of the statements as FIR—Shivshankar Singh
v. State of Bihar, (2012) 1 SCC130.
• In Lalita Kumari v. Govt. of UP and Others, AIR 2012 SC 1515, SC opined
that registration of First Information Report should be Non-Mandatory. Police
officer should be satisfied that an offense is made out in the FIR after a
preliminary inquiry as an FIR leads to serious consequences for the accused
and for this reason the need for a preliminary inquiry is implicit with the
provisions of section 154 of Code of Criminal Procedure.
• If any oral information relating to the commission of a cognizable offence is
given to the SHO but the same is not recorded and the police officer
proceeds to the scene of offence and records statements of witnesses, none
of such statements would amount to FIR. In such a case, the real FIR is the
unrecorded oral information given to the SHO by informant.– Somappa
Vamanappa Madar v. State of Mysore, (1980) 1 SCC 479.
• If on the basis of FIR, SHO has reason to suspect the commission of a
cognizable offence, he is required forthwith to send a report of the same
(occurrence report) to the Magistrate concerned. Usually, a copy of FIR is
filed with the Magistrate in compliance with the requirement of sending
occurrence report. Unreasonable delay in sending report will cast shadow on
the prosecution case and lead to inference adverse to prosecution case.
• IN RESPECT OF NON COGNIZABLE OFFENCES: If any person gives
information to SHO of commission of a non-cognizable offence, officer shall
enter or cause to enter the substance of the information in a book to be kept
by such officer in the form prescribed by the State Govt. Officer shall then
refer the informant to the Magistrate.
• As non cognizable offences are considered as private wrongs, Police officer
shall not investigate a non cognizable offence without order of Magistrate.—
S. 155(2).
• Once such order is issued, police officer receiving the order may exercise the
same powers in respect of investigation as an SHO exercise in the case of a
cognizable offence. –S. 155(3)
• If two or more offences are involved and one of them is a cognizable offence,
case shall be deemed to be a cognizable case—S. 155(4)
• In the case of a cognizable offence, any officer in charge of a police station
may investigate, without order of Magistrate, over which the Magistrate
having jurisdiction would have power to inquire and try the case. – 156.
• U/s. 156 (3) any Magistrate empowered under S. 190 may order such an
investigation. In Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627, the
Supreme Court held that it is the duty of SHO to register an FIR when
investigation under S. 156(3) is directed by the Magistrate, even when the
Magistrate explicitly does not say so.
• If officer in charge of police station has reason to suspect, from information
received or otherwise, he shall forthwith send a report (FIR) of the same to
the Magistrate empowered to take cognizance of such offence on police
report. He should himself proceed to the spot or direct another person to go
to the spot and investigate the facts and circumstances of the case.
• He must also take measures for discovery and arrest of the offender.
• If information received is not of a serious nature, officer need not proceed to
or depute a subordinate officer to make investigation spot investigation.
• If it appears to the officer that there is no sufficient ground for entering an
investigation, he shall not investigate the case. – Proviso (a) and (b).
• However, the police officer shall state in his report his reasons for not fully
complying with the requirements s/s.(1). The officer shall notify the informant also
if he proceeds under proviso (b).
• U/s. 158, every report sent to Magistrate shall be submitted through a superior
officer, if so directed by the State Govt, by general or special order.
• 158(2) Such superior officer may give such instructions to the officer in charge of
the police station as he thinks fit and shall, after recording such instructions or
such report, transmit the same without delay to the Magistrate.
• Magistrate on receiving Report, if he thinks fit, direct an investigation at once and
proceed or depute a Magistrate subordinate, to proceed to hold a preliminary
inquiry into or otherwise to dispose of the case.- S. 159
• Police Officer conducting investigation may direct any person acquainted with the
facts and circumstances of the case to appear before him and such person shall so
attend, if so required. S.160.
• No male person below 15 years and woman shall be required to attend any place
other than where he/she resides—Proviso to S. 160.
• ARREST
• Arrest means apprehension of a person by legal authority resulting in
deprivation of his liberty.
• Eg. Police officer arrests a pick-pocket, he is arresting the pick-pocket.
• When a dacoit apprehends a person to extract ransom, the dacoit is
wrongfully confining him.
• Every compulsion or physical restraint is not arrest
• When the restraint is total and deprivation of liberty is complete, that would
amount to arrest.
• Arrest of a person may be necessary under the following circumstances:
• 1. For securing attendance of accused at trial: When a person is being tried
on the charge of a crime, his attendance at the trial is necessary. If he does
not appear in response to summons, his arrest and detention is the only
effective method of securing his presence at the trial.—S. 204 r/w S. 87;
clauses (a) and (c) of S. 41(1) and 43 (private person can arrest).
• 2. As a preventive or precautionary measure: If there is imminent danger of
the commission of a serious crime – cognizable offence – arrest of the
person intending to commit such a crime may become necessary, as a
preventive measure – S. 151.
• There may also be circumstances where arrest of a habitual offender or ex-
convict (S. 41(2)) or a person found under suspicious circumstances (S.41(1))
becomes necessary as a precautionary measure.
• 3. For obtaining correct name and address: Where a person, on being asked
by a police officer, refuses to give his name and address, under certain
circumstances the police officer could arrest such person with a view to
ascertain his correct name and address—42.
• 4. For removing obstruction to police: Whoever obstructs a police officer in
the exercise of his duty would be and should be liable to be arrested then
and there by such a police officer—S.41(1)(e). This is essential for effective
discharge of police duties
• 5. For re-taking a person escaped from custody: A person who has escaped
from lawful custody should be arrested forthwith by police—Binoy Jacob v.
CBI, 1993 Cr LJ 1293 (Del).
• DECISION TO ARREST: Decision to arrest should be made fairly having due
regard to the liberty of the individual and interests of the society.
• On the information received from the police officer or informant, if the
Magistrate takes a decision to arrest, he would issue a warrant of arrest. It is
a written order signed, sealed and issued by a Magistrate and addressed to
a police officer or some other person specially named and commanding him
to arrest the body of the person (accused) named in it.
• Certain circumstances warrant prompt and immediate arrest even without
approaching the Magistrate.
• A serious crime has been committed by a dangerous person who is likely to
abscond.
• There may be circumstances where to avert imminent danger of out-break of
crime, arrest is required as preventive action
• In such circumstances, the investigating agency in its discretion may arrest
the accused.
• It is possible that where several persons are involved, investigating agency
may, in its discretion, arrest one or two and not the others.
• In Binoy Jacob v. CBI, 1993 Cr. Lj 1293 (Del), the Delhi High Court opined
that in a country governed by the rule of law, discretion of the agency does
not mean whim, fancy or wholly arbitrary exercise of discretion.
• Every person arrested without a warrant is required to be produced before
the Judicial Magistrate within 24 hours of arrest.
• There have been complaints that police has been flouting this rule. In
Poovan v. Sub Inspector of Police, 1993 Cri. LJ 2183 (Ker), Kerala High
Court held that whenever a complaint is received by a Magistrate that a
person has been arrested within his jurisdiction but has not been produced
before him within 24 hours, he should call upon the police officer to state
whether the allegation is true and under whose custody he is being so held.
• If the officer denies arrest, Magistrate can make an inquiry and pass
appropriate orders.
• Further detention shall be illegal unless permitted by a competent Judicial
Magistrate.
• The Code thus contemplates two types of arrests:
• 1. Arrest in pursuance of a warrant issued by a Magistrate; and
• 2. Arrest made without such a warrant but in accordance with some legal
provision permitting such arrest.
• ARREST WITH A WARRANT
• Where a person is alleged to have committed a non-cognizable offence, he
can be arrested without a warrant.
• The Code, however, does not expressly empower a Magistrate to issue a
warrant before taking cognizance of any such offence. Code also does not
say in what circumstances such warrant can be issued.
• Theoretically, Magistrate may at any time issue a warrant in case of a
cognizable or non-cognizable offence.
• But in practice, warrant of arrest is issued only after taking cognizance of the
offence.
• Magistrate may issue warrant of arrest in cognizable and non-cognizable—
Ss. 204 and 87.
• If cognizance is taken of a summons case, summons is issued to the accused
in the first instance for his attendance in court.
• In a warrant case, a warrant for the arrest of the accused may normally be
issued for causing the accused to be brought before the court—S. 204.
• S. 87 permits the Magistrate to depart from the above general rule if
circumstances so demand in a particular case. Eg. If the Magistrate has
reason to believe that the accused is likely to abscond, he may issue a
warrant at the first instance.
• In practice, however, in the case of a cognizable offence, arrest is made by
the police even before the Magistrate takes cognizance of the offence on a
police report.
• Report is submitted after investigation into the offence and the police has
power to arrest the accused during investigation.
• Cognizance of any offence can be taken by the Magistrate;
• (1) upon a police report
• 2. upon receiving a complaint
• 3. upon information received from any person other than a police officer
• 4. Upon the knowledge of the Magistrate himself. – S. 190.
• Ss. 70 to 73 contain provisions in respect of the form and contents of a
warrant of arrest.
• Ss. 74-81 provides the mode of execution of a warrant for arrest.
• Ss. 37 and 38 deal with the duty and power of a private citizen to assist in
the execution of a warrant for arrest.
• ARREST WITHOUT A WARRANT
• A police officer may arrest without a warrant:
• (a) any person actually concerned or reasonably suspected to be concerned
in a “cognizable offence”- S. 41(1)(a)
• (b) any person who, in the presence of such an officer, has committed or has
been accused of committing a “non-cognizable” offence and refused to give
his true name and address.
• Arrest in this case is made for the purpose of ascertaining the name and
residence and after ascertaining the same, the person is released on his
executing a bond (with or without sureties) to appear before Magistrate if so
required.
• If such ascertainment or execution of bond cannot be done within 24 hours,
the arrested person has to be produced before the Magistrate. – S. 42
• (c) any person concerned or reasonably suspected to be concerned in any act
committed at a place outside India which, if committed in India, would be
punishable as an offence for which he would be liable to be apprehended or
detained in custody in India – S. 41(1)(g)
• (d) any person for whose arrest any requisition is received from another
police officer competent to arrest that person without warrant. S. 41(1)(i)
• (e) any person reasonably suspected of being a deserter from any of the
armed forces of the Union – S.41(1)(f)
• (f) any person found in possession of any implement of house-breaking
without any lawful excuse-S. 41(1)(b)
• (g) any person found in possession of property reasonably suspected to be
stolen, and who may be reasonably suspected of having committed an
offence with reference to such property – S. 41(1)(d)
• (h) any person obstructing a police officer in the discharge of his duties
• (i) any person who has escaped from lawful custody
• (j) any released convict committing a breach of any rule made u/s. 356(5)
• (k) any person designing to commit a cognizable offence which cannot be
prevented except by the arrest of such a person –S. 151.
• By Act 5 of 2009 (Cr.PC Amendment Act, 2008), a police officer may arrest
without warrant in the following additional situations:
• (a) where a person has committed a cognizable offence in the presence of a
police officer
• (b) where a reasonable complaint has been received that a person has
committed a cognizable offence punishable with imprisonment for more than
seven years and the police officer has reason to believe that information.
• The police officer shall also satisfy himself the following situations:
• (i) that the arrest of the person is necessary to prevent such person from
committing any further offence; or
• (ii)arrest of the person is necessary for proper investigation of the offence; or
• (iii) arrest of the person is necessary to prevent such person from causing the
evidence of the offence to disappear or tamper with such evidence; or
• (iv) arrest of the person is necessary to prevent him from making any
inducement, threat or promise to any person acquainted with the facts of the
case, so as to dissuade him from disclosing such facts to the court or to the
police officer; or
• (v) arrest of the person is very much necessary to ensure his presence in the
court when it is so required.
• However, a person concerned in a non-cognizable offence or a person
against whom a reasonable suspicion exists of having so concerned, shall not
be arrested without a warrant or order of Magistrate – S. 41(2)as amended.
• In Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406 arising
from unlawful arrest of a Judicial Officer, Supreme Court issued the following
guidelines:
• (a) If a judicial officer is to be arrested for some offence, it should be done
under intimation to the District Judge or the High Court, as the case may be
• (b) if the facts and circumstances necessitate the immediate arrest of a
judicial officer of subordinate judiciary, a technical or formal arrest may be
effected.
• (c) Fact of such arrest should be immediately communicated to the District
and Sessions Judge of the district concerned and Chief Justice of HC
• (d) the judicial officer so arrested shall not be taken to police station, without
prior order or directions of District and Sessions Judge of district concerned,
if available.
• (e) Immediate facilities shall be provided to the officer for communication
with his family members, legal advisers and judicial officers, including District
and Sessions Judge.
• (f) No statement of judicial officer under arrest be recorded nor any
panchnama be drawn up nor any medical test conducted except in the
presence of legal advisor of the judicial officer or another judicial officer of
equal or higher rank, if available
• (g) No handcuffing of a judicial officer. If, however, violent resistance to
arrest is offered or there is imminent need to effect physical arrest in order
to avert danger to life and limb, person resisting arrest may be overpowered
and handcuffed. In such a case, immediate report shall be made to District
and Sessions Judge concerned and also to the CJ of High Court.
• If the arrest and handcuffing are found unjustified, the police officer would be
guilty of misconduct and personally liable for compensation or damages as
may be summarily determined by the High Court.
• ARREST OF WOMAN
• Bombay High Court had directed that police should not arrest a woman
without the presence of a lady constable and arrest of woman should not be
made after sunset and before sunrise.
• Supreme Court in State of Maharashtra v. Christian Community Welfare
Council of India, (2003) 8 SCC 546 modified the same and ruled:
• While arresting a female person, all efforts should be made to keep a lady
constable present but in the circumstances where the arresting officers are
reasonably satisfied that such presence of a lady constable is not available or
possible and/or the delay in arresting caused by securing the presence of
lady constable would impede the course of investigation, such arresting
officer for reasons to be recorded either before the arrest or immediately
after the arrest be permitted to arrest a female person for lawful reasons at
any time of the day or night depending on the circumstances of case even
without the presence of a lady constable.
• S. 46(4) (inserted by Act 25 of 2005) now lays down that except in
exceptional circumstances no woman may be arrested after sunset and
before sunrise and where such exceptional circumstances exist, the woman
police officer should obtain prior permission of the Judicial Magistrate of the
first class within whose jurisdiction the offence has been committed.
• Any PRIVATE PERSON may arrest without warrant:
• (a) any person committing a non-bailable and cognizable offence in his
presence; or
• (b) any proclaimed offender.
• The person arresting another has to hand over the arrested person to a
police officer without delay, or if needed take the arrested person in custody
to the nearest police station. Police officer may then re-arrest the person, if
arrest without a warrant by police officer is permissible and otherwise, at
once release that person.
• ANY MAGISTRATE may arrest without a warrant
• (a) any person committing an offence within the local jurisdiction of, and in
the presence of, such Magistrate– S. 44(1) or
• (b) any person within his local jurisdiction for whose arrest he is competent
to issue a warrant—S. 44(2)
• A MEMBER OF ARMED FORCES shall not be arrested for anything done or
purported to be done by him in the discharge of his official duties except
after obtaining the consent of the Govt. controlling the armed force
concerned.
• ARREST HOW MADE
• Police officer touches or confines the body of the person to be arrested
unless there be a submission to custody by word or action—S.46(1) &
Roshan Beevi v. Joint Secy. Govt. of T.N. 1984 Cri LJ 134 (mad) (FB)
• An oral declaration of arrest without actual contact or submission to custody
will not amount to arrest
• Where a woman is arrested, police officer shall not touch the person of the
woman for effecting her arrest—Proviso to S. 46 (inserted by Act 5 of 2009).
Submission to custody on an oral intimation of arrest shall be presumed
unless the circumstances indicate to the contrary.
• Every police officer making arrest shall bear an accurate, visible and clear
identification of his name for facilitating easy identification.
• He will prepare a memorandum of arrest which shall be attested at least by
one witness, who is a member of the family of the arrested person or a
respectable person of the locality. Memorandum shall be countersigned by
the person arrested.
• If the attestor is not a member of family of the arrested, police officer shall
inform the arrested person of his right to have a relative or a friend named
by him to be informed of the arrest—S. 41B (inserted Act 25 of 2009)
• The precise arrest procedure is important to determine whether at a
particular time, the person was under arrest or not.
• POWERS UNDER THE CODE FOR EFFECTING ARREST
• 1. Power to use force: If the person to be arrested resists the endavour to
arrest him or attempts to evade arrest, person making arrest may use all
means necessary to make the arrest –S. 46(2).
• However, power to use force shall not extend to causing death of person
who is not accused of an offence punishable with death or Imprisonment for
life—S. 46(3)
• Arrested person is not to be subject to more restraint than necessary to
prevent his escape
• Persons arrested shall not be handcuffed indiscriminately. Supreme Court in
Citizens for Democracy v. State of Assam, (1995) 3 SCC 743 directed:
• “In all cases where a person arrested by police, is produced before the
Magistrate and remand—judicial or non-judicial—is given, the person
concerned shall not be handcuffed unless special orders in that respect are
obtained from the Magistrate at the time of grant of remand.
• When police arrests a person in execution of warrant issued by a Magistrate,
he shall not be handcuffed unless the police has also obtained orders from
the Magistrate for handcuffing.
• Where arrest by police is without warrant, if the police officer is satisfied on
the basis of above guidelines that it is necessary to handcuff the person, he
may do so till the time he is taken to police station and thereafter his
production before the Magistrate. Further fetters can only be under orders of
the Magistrate.
• 2. Power to search: An occupier of a house is under a legal duty to afford to
the police, and to any person acting under a warrant of arrest, all facilities to
search the house for making arrest. If such facilities are denied or
obstruction is created, police officer/person executing warrant, has power to
use force for getting entry for search and also for liberating himself in case
he is detained in the house.
• These powers are subject to restrictions if the part is in occupation of any
pardanashin woman—S.47.
• 3. Power to pursue: Police officer authorize to arrest a person, may pursue
him to any place in India—S. 48.
• S. 77 makes it clear that warrant of arrest may be executed at any place in
India. If the warrant of arrest is to be executed outside the local jurisdiction
of the court issuing it, special procedure provided in Ss. 78-81 have to be
followed.
• 4. Power to obtain assistance: Police officer can reasonably ask any person
to assist him in taking of or preventing escape of any other person he is
authorized to arrest—S. 37. Person asked has the legal obligation and if he
fails intentionally, failure on his part is punishable u/s. 187 IPC.
• 5. Power to require subordinate officer to arrest: The officer in charge of
police station or the officer making investigation u/Ch. XII, can require any
subordinate officer to arrest without a warrant any person who may be
lawfully be arrested without a warrant. He may deliver an order in writing
specifying the person to be arrested and the offence or other cause for which
the arrest is to be made—S. 55.
• 6. Power to rearrest escapee: If a person in lawful custody escapes or is
rescued, person from whose custody he escaped or rescued, may
immediately pursue and arrest him in any place in India. Person arresting
shall have the same powers and duties for using force and search etc. –S.60
• PROCEDURES AFTER ARREST
• 1. Search of arrested person: When the arrested person cannot be admitted
to bail or is unable to furnish bail, police officer arresting or to whom the
arrested person is made (arrest by private person), may search such person,
and place in safe custody all articles, other than necessary wearing apparel,
found upon him. Receipt showing articles so seized shall be given to him.
• Where arrested person is a woman, search shall be made by another woman
with strict regard to decency—S. 51.
• In Mahadeo v. State, 1990 Crl. LJ 858 (All) failure to take out a recovery
memo was held not vitiating the trial.
• 2. Seizure of offensive weapons: Police officer or any person making arrest
may take from the person arrested any offensive weapons which he has
about his person, and deliver all weapons to court or officer before which or
whom the arrested person is to be produced—S. 52.
• 3. Medical examination of accused: If the offence charged is of such a nature
and alleged to have been committed under such circumstances that possible
evidence would be afforded by medical examination of the arrested person,
then at the instance of police officer (not below the rank of Sub Inspector)
medical examination of the arrested person shall be done by a registered
medical practitioner to ascertain facts that might afford such evidence.
Reasonable force necessary for the purpose could also be used.
• If the arrestee is a woman, examination shall be made by or under
supervision of a registered lady medical practitioner –S. 53.
• Such medical examination is not of violative of Art. 20(3) as it would not
amount to compelling the arrested person “to be a witness” against himself.
• Medical examination may include testing of blood, sputum, semen, urine etc.,
depending upon the nature of the case. If the process of examination is
reasonable, discomfort pain or hurt caused to the examinee is justified by the
section-- Anil Anantrao Lokhande v. State of Maharashtra, 1981 Cri LJ 125
(Bom).
• Cr.PC Amendment Act, 2005 has laid down detailed procedure in Ss. 53A,
54(2) and 54A.
• U/s. 53A, accused in a rape case could be sent for medical examination by a
registered medical practitioner working in a hospital run by govt. or local
authority and in their absence within a radius of 16 km, to any other
registered medical practitioner acting at the request of police officer not
below the rank of Sub Inspector. Necessary force can also be used for such
examination.
• Medical practitioner has to prepare a report with supporting reasons for his
conclusion on each aspect, detailing the name and address of the accused and the
person taking the accused to the medical practitioner, age of the accused, marks of
injury on the person of the accused, description of material taken from accused for
DNA profiling and other material particulars.
• Exact time of commencing and completion of examination would be noted and a
copy of the report will be sent to the police officer and Magistrate. If the
examination takes place at the instance of the accused, a copy will be given to him
also.—54(1).
• U/s. 54A, court having jurisdiction, on the request of police officer in charge of
station, can require an accused to subject himself for identification by others if it is
found necessary for the investigation of the offence. Superior police officers or
court are not debarred from exercising power u/s. 53, if such examination becomes
necessary for doing justice in a criminal case—Anil Anantrao v. State
• U/54A, if the person identifying the arrestee is physically or mentally disabled,
identification shall take place under the supervision of a Judicial Magistrate and it
shall be videographed.
• S. 311A authorizes the Magistrate to direct any person including an accused to
give specimen signatures or handwriting for the purpose of investigation or other
proceedings. Such order shall not be made if he was arrested at any time in
connection with such investigation – S. 27 of Act 25 of 2005.
• Even if the accused is released on bail, he is still “a person arrested on
charge of committing an offence” as contemplated by S. 53;
• moreover such a person while released on bail is notionally in the custody of
the court (through the surety) and, therefore, his medical examination can be
carried out in terms of S. 53—Anil Anantrao, Thaniel Victor v. State, 1991
Cri LJ 2414 (Mad).
• 4. Reports of arrests to be sent to District Magistrate: Officer in charge of
police station should report to the District Magistrate cases of all persons,
arrested without warrant, within the limits of his station—S. 58.
• 5. Person arrested not to be discharged except on bond or bail: A person
arrested by a police officer shall not be discharged except on his own bond
or bail or under the special order of a Magistrate. –S. 59.
• RIGHTS OF ARRESTED PERSON
• 1. Right to be informed of the grounds for arrest: The person arresting (with or
without warrant) shall communicate to the arrested person without delay, the
grounds for his arrest—S. 50, 55, 75
• This is a fundamental right of the accused u/A. 22(1) of the Constitution. It is a
precious right and timely communication of grounds of arrest serves the arrestee
in several ways:
• It gives him an opportunity to remove any mistake, misapprehension or
misunderstanding, if any in the mind of the person arresting.
• It enables him to apply for bail or for a writ of habeas corpus or other expeditious
arrangaments for his defence.
• S. 50A (enacted after the ruling in Joginder Kumar v. State of UP, (1994)4 SCC
260 and D.K. Basu v. State of W.B., (1997) 1 SCC 416, makes it obligatory on the
part of police officer not only to inform the friend or relative of the arrested
person about his arrest etc. but also to make an entry in the register maintained
by the police.
• Magistrate is also under obligation to satisfy himself about compliance of the law
by the police in this regard.
• 2. Right to be informed of right to bail: Police officer arresting without
warrant other than a person accused of a non-bailable offence should inform
the person arrested that he is entitled to be released on bail and that he may
arrange for sureties on his behalf—S. 50(2).
• 3. Right to be produced before a Magistrate without delay: Person arresting
(with or without warrant) is required without unnecessary delay and subject
to provisions regarding bail, to produce the arrestee before the Magistrate or
court having jurisdiction in the case—S. 56 & 76.
• 4. Right of not being detained for more than 24 hours without judicial
scrutiny: Person arresting shall, unless the arrestee, is released on bail,
produce the arrestee before the nearest Magistrate within 24 hours of arrest
(exclusive of the time necessary for the journey from place of arrest to the
Court of Magistrate—S.57 & Proviso to S. 76.
• Detention would be unlawful if the above provisions are not complied with—
Manoj v. State of M.P., (1999) 3 SCC 715.
• When produced before Magistrate, Magistrate shall either remand him or
release him on bail. Such remand would continue till trial is over – Hari Om
Prasad v. State of Bihar, 1999 Crl. LJ 4400 (Pat)
• Illegal detention may lead to award of compensation by court—DG and IG of
Police v. Prem Sagar, (1999)5 SCC 700.
• Noting that some police officers recrd time of arrest in such a way to show
that production before Magistrate is within 24 hours, Bombay High Court in
Ashok Hussain Allah Detha v. Collector of Customs, 1990 Cri LJ 2201 (Bom)
ruled that arrest commences with the restraint placed on the liberty of the
accused and not with the time of arrest recorded by arresting officer.
• This is a fundamental right of the arrestee u/Art. 22(2) of Constitution.
• This right has been created with a view
• (a) to prevent arrest and detention for the purpose of extracting confessions
or as a means of compelling people to give information;
• (b) to prevent police stations being used as though they were prisons-a
purpose for which they unsuitable;
• (c) to afford an early recourse to a judicial officer independent of the police
on all questions of bail or discharge—Mohammed Suleman v. King Emperor,
30 CWN 985.
• This provision in S. 57 enables Magistrate tos to keep a check over police
investigation. Magistrates should enforce this requirement, and come down
heavily upon police where it is found disobeyed.-- Khatri (II) v. State of Bihar,
(1981)1 SCC 627.
• Kerala High Court issued detailed procedure in such cases in Poovan v. Sub
Inspector of Police (See Decision to Arrest)
• 5. Right to consult a legal practitioner. S. 303 of the Code and Art. 22(1) of
the Constitution recognize the right of every arrested person to consult a
legal practitioner of his choice. This right begins from the moment of arrest.
Consultation may be in the presence of police offer but not within his
hearing—Directorate of Revenue Intelligence v. Jugal Kishore Sharma, (2011)
12 SCC 362.
• Under the newly inserted S. 41-D, any person arrested and interrogated by
police shall be entitled to meet an advocate of his choice during
investigation. The right would not be available throughout the interrogation.
• 6. Right of an arrested indigent person to free legal aid and to be informed
about it: Supreme Court in Khatri (II) v. State of Bihar, (1981)1 SCC 627 held
that State is under a constitutional mandate implicit u/A.21 to provide free
legal aid to an indigent accused, that this constitutional obligation does not
arise only when the trial commences but also when the accused is for the
first time produced before the Magistrate as also when he is remanded from
to time.
• This right would be illusory if the accused is not informed about it.
Magistrate has a duty to inform the accused about his right to free legal aid
when he is produced before him. In Suk Das v. Union Territory of Arunachal
Pradesh (1986) 2 SCC 401, Supreme Court held that this constitutional right
cannot be denied if the accused failed to apply for it.
• Failure to provide legal aid to an indigent accused will vitiate the trial
entailing setting aside of conviction and sentence.
• 7. Right to be examined by a medical practitioner: Every person arrested has
a right to be examined, soon after the arrest, by a medical practitioner in the
service of Central or State Govt.– S. 54(1)
• In the absence of such a medical officer, by a registered medical practitioner.
• If the arrestee is a female, medical examination shall be made only by or
under the supervision of a female medical officer or registered medical
practitioner.
• The medical officer/practitioner shall prepare a record of such examination
and shall mention the injuries or marks of violence upon the person,
approximate time when such injuries or marks may have been inflicted.--
S.54(2). A copy of the report is to be furnished to the arrestee or person
nominated by him—S. 5A(3).
• In Sheela Barse v. State of Maharashtra (1983)2 SCC 96, accused person
must be informed by the Magistrate about his right to be medically examined
in terms of S. 54. (See also Mukesh Kumar v. State, 1990 Cri LJ 1923 (Del),
• S. 41 casts an obligation on State Govt. to establish a control in every
district and State level. Names and addresses of persons arrested and name
and designation of police officers who made the arrests shall be displayed
on the notice board kept outside such control room.
• Control room at State level shall collect details about persons arrested,
nature offence charged and maintain a databased for information of general
public—Ss. 41C, 41C(2) and 41C(3).
• In Joginder Kumar v. State of UP (1994) 4 SCC 260, the following rules have
been formulated:
• 1. The arrested person being held in custody is entitled (if he so requires) to
have one friend, relative or other person who is known to him or likely to
take an interest in his welfare, told, as far as is practicable that he has been
arrested and where he is being detained
• 2. The police officer shall inform the arrested person of this right, when he is
brought to the police station.
• 3. An entry shall be required to be made in the diary as to who was informed
of the arrest.
• These protections are held to emanate from Arts. 21 and 22(1) of
Constitution.
• Supreme Court in D.K. Basu issued the following instructions:
• 1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear
accurate, visible and clear identification and name tags with their designations. The particulars of all such police
personnel who handle interrogation of the arrestee must be recorded in a register.
• (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest
and such memo shall be attested by atleast one witness. who may be either a member of the family of the
arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by
the arrestee and shall contain the time and date of arrest.
• (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation
centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having
interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at
the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the
arrestee.
• (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next
friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District
and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
• (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as
soon he is put under arrest or is detained.
• (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also
disclose the name of the next friend of the person who has been informed of the arrest and the names and
particulars of the police officials in whose custody the arrestee is.
• (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor
injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both
by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
 • (8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention
in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned
Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.
• (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the jurisdiction
Magistrate for his record.
• (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation.
• (11) A police control room should be provided at all district and state headquarters, where information regarding
the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within
12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice
board.
• Failure to comply with the above requirements shall apart from rendering the concerned official liable for
departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of
court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
• These instructions are applicable to authorities (having power to effect arrest and detain persons for interrogation)
like Directorate of Revenue Intelligence, Directorate of Enforcement, CBI, CID, CISF etc.
• In Rakesh Kumar Paul v. State of Assam, AIR 2017 SC 3948, the Supreme Court held that State has the
obligation to render free legal assistance to an arrested person not represented by a lawyer of his own choice.
Not only the police but the Magistrate before whom the accused is produced should also ensure that the
accused is given adequate legal assistance and protection. “It is the obligation of court to inform the accused
that he or she is entitled to free legal assistance as a matter of right”.
• Right to compensation for victims of unlawful arrest and detention has been recognized by SC in Nilabati
Behera v. State of Orissa, (1993) 2 SCC 746.
• CONSEQUENCES OF NON COMPLIANCE WITH PROVISIONS RELATING TO
ARREST:
• 1. Trial will not be void simply because provisions relating to arrest have not
been fully complied with.
• 2. The illegal or irregular arrest would still be material if such a person is
prosecuted on a charge of resistance to or escape from lawful custody.
• 3. If the arrest is illegal, person arrested can exercise the right of private
defence in accordance and subject to provisions in 96-106 IPC.
• 4. If the public arrest having authority to make arrests, knowingly exercises
that authority in contravention of law, he can be prosecuted for an offence
u/s. 220 IPC. Such person is also punishable u/s. 342 IPC for wrongful
confinement.
• 5. If arrest is illegal, it is a tort of false imprisonment, and arrested person is
entitled to claim damages from the person who made the arrest.
• STEPS FOR PROCURING ACCUSED IN COURT:
• I By issuing summons:
• (i) ordinarily in all summons cases (s. 204 r/w s. 2(w)
• (ii) also in warrant cases at court’s discretion (s. 204 r/w s. 2(x)
• Personal attendance of accused in court may be dispensed with at court’s
discretion (S. 205)
• II If the accused happens to be in court by requiring him to execute bond for
appearance (S.88)
• III By arresting the accused – with or without warrant
• Arrest with warrant - Warrant when issued
• (i) ordinarily in all warrant cases (s. 204 r/w s. 2(x)
• (ii) Even in summons cases, if necessary (S.87)
• (iii) in case of breach of bond for appearance u/s. 88 (S.89)
• Arrest without Warrant:
• (i) by police officer (S.41(1); S. 42
• (ii) By police officer in charge of police station (S. 41(2)
• (iii) By a Magistrate (S. 44)
• Iv) By private person (S. 43)
• PROCLAMATION AND ATTACHMENT
• If any Court has reason to believe (whether after taking evidence or not) that
any person against whom a warrant has been issued by it, has absconded or
is concealing himself so that such warrant cannot be executed, Court may
publish a written proclamation requiring him to appear at a specific place at
a specified time not less than 30 days from date of publication (S. 82(1), as
under: (S. 82(2))
• (a) The proclamation shall be publicly read in some conspicuous place of the
town or village where such person ordinarily resides
• (b) it shall be affixed to some conspicuous part of the house or homestead in
which such person ordinarily resides or conspicuous place of town or village.
• (c) copy thereof shall be affixed to some conspicuous part of Court-house.
• Statement by the court in writing about the fact and manner of publication
shall be conclusive evidence of such publication– 82(3)
• Where proclamation published is in respect of a person accused of an
offence u/s. 302, 304, 364, 367, 382, 392, 393, 395, 396, 397, 398, 399,
400, 402, 436, 449, 459 or 460 IPC, court after making such inquiry as it
thinks fit, pronounce him a proclaimed offender– (S. 82(4).
• The Court may for reasons to be recorded in writing, after the proclamation,
order attachment of any movable or immovable property belonging to the
proclaimed person—S. 83(1)
• If the Court is satisfied, by affidavit or otherwise that the proclaimed offender
is (a) about to dispose of the whole or any part of his property, or (b) is
about to remove the whole or any part of his property from local jurisdiction
of the Court, it may order attachment of property simultaneously with the
proclamation.—Proviso to S. 83(1).
• Court may order attachment of any property belonging to such person within
the District.
• Property beyond the District can also be attached when endorsed by the
District Magistrate within whose jurisdiction the property is situate.—(S.
83(3)).
• In the case of immovable property, attachment shall be made through the
Collector of the District and in other cases—
• (a) by taking possession; or
• (b) by appointment of receiver; or
• (c) by an order in writing prohibiting the payment of rent on delivery of
property to the proclaimed person or anyone on his behalf; or
• (d) by all or any two of the methods, as the Court thinks fit. – (S. 83(4))
• If the property attached is livestock or of perishable nature, Court may order
sale and pass orders appropriate for dealing with the sale proceeds.-S. 83(5)
• These are known as coercive steps to prevent offenders from absconding
from appearance and trial of the case.
• SEARCH AND SEIZURE
• For the purpose of investigation, inquiry and trial, things and documents
have to be produced. As a general rule, freedom and liberty of private
individuals should not be curtailed or sacrificed unless in the larger interest
of the society. The provisions regarding search and seizure attempts to strike
a balance between the interests of individual and society. The provisions also
provide safeguards against possible abuse or misuse of power.
• Main processes for compelling production of things and documents are:
• 1. summons issued by a court;
• 2. written order issued by a police officer in charge of a police station; and
• 3. search and seizure, with or without warrant
• These processes may be used
• 1. for investigation, enquiry or trial in respect of any offence; or
• 2. for any other proceeding generally taken as a preventive or precautionary
measure.
• U/s. 91(1), whenever production of any document or thing is necessary or
desirable for investigation, enquiry or trial or other proceeding,
• A court may issue a summons, or
• A police officer in charge of a police station may issue a written order
• To any person having such a document or thing, to produce the same.
• The above rule, however, would not apply in respect of:
• 1. any unpublished official record relating to any affairs of State –S.91(3)(a)
r/w S. 123 Evidence Act, or certain confidential official communications –
S.91(3)(a) r/w S. 124 Evidence Act.
• 2. any letter, telegram etc. in the custody of postal authority (different rule)
• 3. an accused person, as it would otherwise be violation of Art. 20(3). The
legal provision does not seem to allow any summons or written order to be
issued to an accused person—State of Gujarat v. Shyamlal Mohanlal Choksi,
AIR 1965 SC 1251; Melicio Fernandes v. Mohan, AIR 1966 Goa 23; V.S.
Kuttan Pillai v. Ramakrishnan (1980) 1 SCC 264; Kalanidhi Maran v. State,
200r Cri LJ 1288 (Mad).
• S. 92(1) provides that if any document or thing in custody of postal or
telegraph department is required for investigation, enquiry or trial, District
Magistrate, CJM, Sessions Court or High Court may require such authority to
deliver the document, thing, etc., to a person specified in the order. In case
of urgency, postal authority may be directed by the above authorities to
cause search and to detain such document, thing etc., pending orders.
• SEARCH WITH A WARRANT
• Search warrant is a written authority given to a police officer or other person
by a competent Magistrate or court for search of any place generally or for
specified things or documents or for persons wrongfully detained.
• The power should be exercised with care and circumspection, since search is
a coercive method involving invasion of sanctity and privacy of a citizen’s
home.-- Kalinga Tubes Ltd. v. D. Suri, AIR 1955 Ori 153, Gangadharan v.
Kochappi Chellapan, 1985 Cri LJ 1517 (Ker), Bimal Kanti Gosh v.
Chandrashekhar Rao, 1986 Cri LJ 689 (Ori), Stephen v. Chandra Mohan,
1988 Cri LJ 308 (Ker).
• CIRCUMSTANCES IN WHICH SEARCH WARRANT MAY BE ISSUED:
• 1. Where the Court has reason to believe that a person to whom the order or
requisition has been or might be addressed, would not produce the document or
thing as required.—S. 93(1)(a).
• As summons or written order cannot be issued to an accused to produced a
document or thing in his custody, a search warrant under this clause also cannot
be issued—V.S. Kuttan Pillai v. Ramakrishnan (1980) 1 SCC 264.
• 2. Where such document or thing is not known to the court to be in possession of
any person—S. 93(1)(b)
• 3. Where the court considers that the purposes of any enquiry, trial or other
proceeding will be served by a general search or inspection—S. 93(1)(c).
• Search of premises occupied by accused without the accused being compelled to
be a party to the search would not violate Art. 20(3)—V.S. Kuttan Pillai, ibid.
• A general search means not for any particular document or thing but a roving
enquiry for discovering documents or things which might involve persons with
criminal liability--Paresh Chandra Sen Gupta v. Jogendra Nath Roy, AIR 1927 Cal
93.
• 4. If DM, SDM, or JFCM has reason to believe that any place is used for
deposit or sale of stolen property or for deposit, sale or production of an
objectionable articles like counterfeit coins, stamps, currency notes, false
seals etc. or that such objectionable articles are deposited in any place, he
may by warrant authorize any police officer above a constable to enter and
search the place and to seize such property or articles—S. 94
• 5. Where any newspaper, book etc. contains any matter, the publication of
which is punishable u/ss. 124A, 153A, 153B, 292, 293, 295-A IPC, State
Govt. may by notification stating grounds, declare every copy of such things
to be forfeited to the govt. Upon such declaration, any Magistrate may by
warrant authorize a police officer not below SI to enter upon and search for
such copies in any premises where these may reasonably suspected to be—
S. 95.
• Person aggrieved by such notification can approach the High Court for
redress—S.96.
• 6. If any DM, SDM or JFCM has reason to believe that any person is
wrongfully confined, he may issue a search warrant for the search of such
person.
• If a person is found, he shall forthwith be taken before the Magistrate, who
shall issue appropriate orders—S. 97
• Place and name of person quoted in the warrant are merely enabling and do
not find the process of search. Magistrate need not hold a detailed enquiry
before issue of the warrant—Pravinsingh v. Biharilal Singh, 1989 Cri LJ
1386.
• However, the Magistrate should examine the facts and apply his mind before
issuing a search warrant—Yudhishthir Mohanand v Dalimbe Mohanand,
1990 Cri LJ 1085 (Del).
• In Anjali Anil Rangari v. Anil Kripasagar Rangari (1997) 10 SCC 342,
husband’s request for a search warrant u/s. 97 for his children who were
with his wife was turned down as the mother is the natural guardian of her
children.
• U/S. 99, certain provisions in respect of warrant of arrest have been made
applicable mutatis mutandis to search warrants.
• SEARCH WITHOUT WARRANT
• 1. Any Magistrate may direct a search to be made in his presence of any
place, for the search he is competent to issue a search warrant-S. 103.
• 2. During investigation, if there is no time to obtain a search warrant, and
immediate search of a place is necessary for purpose of investigation, a
senior investigating police officer can conduct a search without warrant.
• To restrain the police power and to prevent possible abuse, the following
provisions have been made:
• (a) Power to search without warrant can be exercised only by a police officer
in charge of police station or any other officer authorized to investigate into
any offence and in fact making such investigation.
• He may require a subordinate officer to conduct the search under certain
circumstances. Then, subordinate officer has authority to conduct search.
• (b) The search is not to be a general search but must be one for particular
things, documents or specified materials necessary for purpose of
investigation
• (c) Place of search must be within the limits of police station of which the
officer is in charge or to which he is attached.
• (d) Police officer making search must have reasonable grounds for believing
• That (i) any specific thing necessary for the purposes of investigation may be
found in the place; and
• (ii) such thing, in his opinion, cannot otherwise be obtained without undue
delay (in his opinion, it will be too late to obtain a search warrant from a
Magistrate)
• (e) The police officer before proceeding to search a place must record the
grounds of his belief as to the necessity of search and must also specify the
things for which search is to be conducted.
• This is to obviate police officer manipulating and choosing his “grounds of
belief” after a roving search. It will also limit the extent of the search.
• (f) Copies of record made prior to the search are to be sent forthwith to the
nearest Magistrate, to ensure that these records are not conveniently
fabricated later. Magistrate should furnish free of cost a copy of the entire
record received from the police to the occupier of the place searched.
• (g) police officer, as far as practicable, is to conduct the search in person.
Only if he is unable to do so and there is no competent person to make
search at the time, can he authorize a subordinate officer to make search.
Police officer must record his reasons for doing so and as far as possible
specify the place to be searched and thing for which search is to be made.
• (h) In addition, provisions as to search warrants and general provisions as to
searches shall, so far as may be, apply to search made by a police officer
without warrant.
• 3. If exigencies of the situation so require, police officer would be able to
effectuate a search without a warrant of a place located beyond the limits of
police station. Such search can be arranged through the SHO concerned or
in urgency by himself. S. 166 requires that in either case, rules mentioned in
(b) above will have to be followed mutatis mutandis.
• 4. Where SHO has reason to believe that weights, measures or instruments
for weighing which are false are used or kept in any place, he can inspect
and search the place and seize them. After seizure, he should forthwith give
information to a Magistrate having jurisdiction – S. 153.
• GENERAL PROVISIONS RELATING TO SEARCHES
• The following provisions apply to all searches (with or without warrant)
except a search for false weights and measures:
• 1. If the place liable to search or inspection is closed, on the demand of
person making search, any person in occupation of such place shall, allow
free ingress thereto and afford all reasonable facilities for search therein-S.
100(1)
• 2. If such ingress cannot be obtained, person conducting search can enter
the place, if necessary by breaking open any outer or inner door or window,
if after notification of his authority and purpose, demand of admittance duly
made, he could not obtain admittance otherwise—S. 100(2) r/w S. 47(2).
• 3. If any person in or about the place of search is suspected of concealing in
his person any article for which search is being made, such person may be
searched. The object is to prevent attempt of frustration. If person to be
searched is a woman, search shall be made by another woman with strict
regard to decency—S. 100(3)
• 4. Search is to be made in the presence of two independent and respectable
inhabitants of the locality—S. 100(4)
• Police officer or other person making search has power to call such
inhabitants to attend and witness the search: he may issue a written order to
them. If the person refuses or neglects, he is deemed to have committed
offence u/s. 187 IPC—S. 100(8)
• Search witness should actually accompany the searching officer and should
be actual witness of finding of the property. It is not sufficient people
summoned are outside the building being searched. Non inclusion of
respectable inhabitants will reduce the weight of evidence.
• 5. Occupant of place of search or his nominee shall in every case be
permitted to attend during the search—S. 100(6)
• 6. List of things seized in course of search and of places where they are
respectively found, shall be prepared by person searching signed by the
witnesses—S. 100(5).
• A copy of the list of things seized in search shall be delivered to the
occupant or his nominee in whose presence search was made. Copy of list of
things seized from the person is also required to be given to such person—
S. 100(5) and (7).
• 7. Recovery of articles in search can be proved at trial by calling the police
officer or other person making search as witness. Search witness need not
be summoned to court for the purpose. Court can, however, summon search
witness if it considers necessary to do so—S. 100(5).
• In tribal areas where provisions of the Code are not applicable, underlying
principles of Cr.P.C. are applied and items seized during search have to be
handed over to the police—Naga People’s Movement of Human Rights v.
Union of India (1998) 2 SCC 109.
• CONSEQUENCES OF IRREGULARITIES OR ILLEGALITIES IN SEARCH
• If the Magistrate, not empowered to issue search warrant u/s. 94,
erroneously and in good faith issues such a warrant, search proceedings
shall not be set aside merely on that ground—S.460(a)
• 2. S.93(3) provides that no Magistrate other than DM or CJM shall issue
warrant to search for a document, parcel or other thing in the custody of
postal or telegraph authority. If a non-specified Magistrate issues such a
warrant, search proceedings shall be void—S. 461(b).
• 3. A search without a warrant conducted by a police officer who is not
authorized to do so, is illegal and devoid of legal authority.
• 4. Ss. 100 and 165 contain the procedure for search of a place. Generally
speaking, non-compliance with search procedure will not vitiate the trial or
make search evidence inadmissible but only the weight of evidence in
support of search and recovery.
• Search procedures are considered directory only
• There is no rule that in the absence of independent witness being associated
with search, seizure cannot be relied upon--State v. Navjot Sandhu, (2005)
11 SCC 600.
• Even if the search is illegal, that will not affect validity of seizure and further
investigations or validity of the trial—State of Maharashtra v. Natwarlal
Damodardas Soni, (1980) 4 SCC 669.
• 5. If search procedure followed by police officer is not strictly legal, occupant
of the place can obstruct with impunity the officer attempting search.
• 6. Non-compliance with search procedure would make the entry into place of
search one without lawful authority. Person making entry is liable to be sued
in civil court for trespass. Occupant may use such force as is legally
justifiable in defence of property and person—Ss. 96-106 IPC.
• SEIZURE
• Person lawfully making a search, with or without warrant, has power to seize
all specified articles for which search is made. Police officer has far wider
powers. He may seize any incriminating things, though not specified for
search. He may seize any property which may be suspected to have been
stolen or which may be found under circumstances which create suspicion of
commission of any offence.
• In M.T. Enrica Lexie v. Doramma, (2012) 6 SCC 760, Supreme Court
examined seizure of the vessel and opined that the vessel can be released on
fulfilment of certain conditions; but did not make any observation regarding
validity of seizure which did not call in any of the categories in S. 102.
• Seizure means actually taking possession in pursuance of a legal process.
• Seizure is made at a particular moment when a person or authority takes into
his possession some property which was earlier not in his possession—
Suresh Nanda v. CBI, (2008) 3 SCC 674.
• Police cannot seize the account and locker held by accused in a bank—
Purbanchal Road Service v. State, 1991 Cr LJ 2798; police officer ordering
stoppage of operation of bank accounts of an accused was disapproved in
State of Maharashtra v. Tapas D. Neogy, (1999) 7 SCC 685.
• In Jayendra Saraswathy Swamigal (2) v. State of T.N. (2005) 8 SCC 771,
Madras High Court ruled that in case of seizure of a bank account, polic
officer should do two things.
• Firstly, he should inform Magistrate concerned regarding prohibitory orders.
He should give notice to the accused and allow him to operate the bank
account subject to his executing a bond undertaking to provide the accounts
in court as and when required and to hold them subject to such orders as
court may make. An order u/s. 102 is otherwise liable to be set aside—B.
Ranganathan v. State, 2003 Cri.LJ 2779(Mad).
• Police officer seizing property shall forthwith report the seizure to the
Magistrate having jurisdiction and if the officer is subordinate to the SHO, he
shall also report the seizure to SHO—S. 102.
• If the property is subject to decay and of value of less than Rs. 500, it could
be sold by auction under orders of Supt. Of police. Proceeds could be
processed under Ss. 457 and 458—Proviso to S. 102 and S. 13(b)
• INVESTIGATION
• In common parlance, ‘investigation’ and ‘inquiry’ are terms used synomously
or interchangeably. They are different and specific and distinct aonnotations
under the Code.
• Investigation is always to be conducted by a police officer or any other
person (other than Magistrate); it includes all proceedings under the Code for
collection of evidence—T.k. Narayanaswamy v. State of Karnataka, 1991 Cri
LJ 2115.
• A preliminary inquiry, even by DySP of Police is not part of investigation.
• “Inquiry” means every inquiry which is conducted by a Magistrate or court
and which is not a trial”—S. 2(g).
• “Inquiry” is never conducted by police.
• Term “trial’ is not defined in the Code. “Trial” means the judicial process in
accordance with law whereby the question of guilt or innocence of the
person accused of any offence is determined.
• Where a Magistrate or court conducts an enquiry for deciding the guilt or
innocence of an accused, such an enquiry is not just “inquiry” but a “trial”.
• Where inquiry relates to a matter other than determination of guilt or
innocence of any alleged offence, such enquiry is not trial but mere ‘inquiry’.
• Eg. Enquiry for deciding the liability to pay maintenance to wife, child or
parent u/s. 125; enquiry for deciding liability to furnish a bond for keeping
peace and/for being of good behaviour u/s. 107, 108, 109, 110 etc.
• INVESTIGATION of an offence consists
• 1. Proceeding to the place of offence
• 2. Ascertainment of facts and circumstances of the case
• 3.discovery and arrest of the suspected offender
• 4. collection of evidence relating to the commission of offence which may
consist of:
• (a) examination of various persons including accused, and reduction of their
statements into writing if the police officer making investigation thinks fit
• (b) search of places or seizure of things considered necessary for the
investigation or trial
• 5. Formation of opinion as to whether on the materials collected, there is a
case to place the accused before the Magistrate for trial; and if so, taking
steps for filing a charge-sheet (challan) u/s. 173– H.N. Rishbud v. State of
Delhi, AIR 1955 SC 196; Vijayaraghavan v. CBI (1984) Cri LJ 1277 (Ker);
• POLICE, WHEN TO INVESTIGATE
• Principal agency for investigation of an offence is police. Police can proceed
to investigate:
• 1. on information received from any person as to commission of any
cognizable offence-- S. 157(1); or
• 2. If police has reason to suspect the commission of any cognizable offence,
even without any such information—S. 157(1) or
• 3. On receiving any order (to investigate) from any Judicial Magistrate
empowered to take cognizance of any offence u/s. 190– S. 156(3).
• Non-cognizable offences are considered essentially private wrongs. General
policy is that State should not use the police for investigation of such
wrongs. If a competent Magistrate considers it desirable, he can order the
police to investigate. Then it would be like investigation of a cognizable
offence and the police will have all the powers.
• If facts reported to the police disclose both cognizable and non-cognizable
offences, police would investigate the whole case as a cognizable one—S.
155 – State of Orissa v. Shart Chandra Sahu, (1996) 6 SCC 435.
• All police officers cannot investigate. U/s.156, only SHO has power to
investigate any cognizable offence committed within local area of such
station.
• An offence may be committed partly in one local area and partly in another
local area; an offence may be committed on a journey or a voyage.
• Question will arise as to which SHO will investigate. Question will also arise
regarding the court which will have jurisdiction to inquiry into or try such
case.
• S. 156(1) provides that any officer in charge of a police station may
investigate any cognizable case which a court having jurisdiction over the
local area within the limits of such a station would have power to inquire into
or try under Ch. XIII.
• PROCEEDING AFTER REGISTERING FIR
• 1. Investigation of a cognizable offence begins when SHO has reason to
suspect the commission of a cognizable offence.
• Basis of such suspicion is essentially the FIR, recorded u/s. 154.
• Yet, it is legally possible that the suspicion may be based on any other
information of the police – S. 157(1).
• 2. Where a reasonable suspicion of commission of a cognizable offence
exists, SHO must immediately send a report of the circumstances creating
suspicion to a Magistrate having power to take cognizance of such an
offence on police report- S. 157(1).
• This is to keep the Magistrate informed of investigation of such a cognizable
offence so as to be able to control the investigation and if necessary to give
appropriate direction u/s. 159—Pala Singh v. State of Punjab (1972) 2 SCC
640.
• It also avoids improvement in prosecution and introduction of distorted
version by deliberations and consultations—Bathula Nagarnalleswara Rao v.
State of A.P. (2008) 11 SCC 722.
• If State Govt. so directs, report shall be submitted through a superior police
officer.
• On receipt of report, superior officer may give such instruction to the SHO, as
he thinks fit, and recording such instructions on the report, transmit the
same without delay to the Magistrate—S. 158.
• 3. SHO shall then proceed in person, or shall depute his subordinate officer
not below the rank prescribed by State Govt., to proceed to the spot, to
investigate the facts and circumstances of the case; and if necessary to take
measures for discovery and arrest of the offender—S. 157(1).
• There are two circumstances in which it is not necessary for SHO to proceed
to investigate:
• (a) when information as to commission of offence is given against any person
by name and the case is not of a serious nature.—S. 157(1).
• Police officer should report to the Magistrate his reasons for not proceeding
to make investigation on the spot—S. 157(2).
• If the assessment by SHO is wrong, superior officer through whom report is
submitted to the Magistrate, can always give appropriate directions to the
SHO, to set right the course of action.
• (b) When it appears to the SHO that there is no sufficient reason/ground for
entering on an investigation—Proviso (b) to S. 157(1).
• Here again, SHO has to send report to Magistrate through superior officer,
who can give appropriate instructions.
• If police officer fails to send report to the Magistrate, yet proceed to the
spot, it does not mean that his proceeding to the spot is not part of
investigation.
• It is also not necessary that a formal registration of case should have been
made before proceeding to the place of occurrence.
• Any step taken by SHO pursuant to information towards detection of the
offence would be part of investigation.
• 4. Magistrate, on receiving report of SHO, may direct an investigation or may
at once proceed to hold a preliminary inquiry or otherwise dispose of the
case in the manner provided—S. 159.
• Power of investigation by police is uncontrolled by the Magistrate.
• Only where police decides not to investigate, Magistrate can intervene and
either direct investigation or himself proceed to the spot for preliminary
inquiry or direct a subordinate to proceed to inquire into the case.
• Magistrate cannot direct a senior police officer to investigate. He can only
direct SHO–State of Kerala v. Kolakkadan Moos Haji, 1994 Cri LJ 1288 (Ker).
• A Magistrate is kept in the picture of investigation at all stages. Yet he is not
authorized to intervene with the actual investigation—Kuldip Singh v. State,
1994 Cri LJ 2502 (Del).
• Privy Council in King Emperor v. Khwaja Nazir Ahmed observed:
• The functions of judiciary and police are complimentary, nor overlapping, and
the combination of individual liberty with due observance of law and order is
only to be obtained by leaving each to exercise its own function..
• In R. Sarla v. T.S. Velu (200) 4 SCC 459, it was held that no investigating
agency could be compelled to seek opinion of public prosecutor under
orders of court.
• If FIR and other relevant materials do not disclose an offence, investigation
will result in unnecessary harassment to a party whose liberty and property
may be put to jeopardy for nothing.
• High Court in exercise of Art. 226 or S. 482 may stop and quash the
investigation proceedings—State of W.B. v. Swapan Kumar Guha, (1982) 1
SCC 561
• POWER TO REQUIRE ATTENDANCE OF WITNESSES
• For effective investigation, police must be able to obtain information from
persons acquainted with the facts and circumstances relevant to the
commission of offence under investigation.
• Code empowers Investigating police officer in this regard.
• U/s. 160(1), police officer may by order require attendance before himself of
any person if following conditions are satisfied:
• 1. the order must be in writing
• 2. person to whom order is made is one who appears to be acquainted with
the facts and circumstances of the case; and
• 3. such person is within limits of the police station of Investigating officer or
within limits of any adjoining police station.
• Non-compliance with summons issued by Police officer will entail
proceedings under S. 188 IPC.
• AP High Court took the view that S. 188 is not meant for that purpose—T.
Purshottam v. C.I. of Police, 1997 Cri LJ 4011(AP).
• Investigating officer may procure attendance of accused, if he evades arrest,
by way of warrant issued by Magistrate u/s. 73.
• During investigation, Magistrate could remand accused to judicial custody or
police custody u/s 167.
• A person below 15 years of age or above 65 years or a woman or mentally
or physically disabled person cannot be required to attend any place other
than the place of his/her residence—S. 160(1).
• It is to give protection to children and women against probable indignities
and inconveniences caused by abuse of police powers u/s. 160(1)—Niloy
Dutta v. District Magistrate, 1991 Cri LJ 2933.
• Recording of the statement of victim of rape shall be conducted at her
residence or place of her choice—S. 157(1) 2nd proviso.(Act 5 of 2009).
• The statement shall be recorded, as far as practicable by a female police
officer in the presence of her parents/guardian or near relatives or social
worker of the locality.
• Any person who intentionally omits to attend as required by investigating
officer is liable to be punished u/s 174 IPC.
• But Investigating officer has no authority to use force for compelling
attendance; nor can he arrest and detain such person.
• POWER TO INTERROGATE WITNESSES AND RECORD THEIR STATEMENTS
• (1) Power to interrogate: For facilitating collection of evidence, Investigating
officer is empowerd to examine orally any person supposed to be acquainted
with the facts and circumstances of the case—S. 161(1).
• Such a person is required to answer truly all questions relating to the case
put to him. But he is free not to give answers to questions which would
expose him to a criminal charge or penalty or forfeiture—S. 161(2).
• If a person legally bound to answer, refuses to answer questions, he is liable
to be punished u/s. 179 IPC. If he gives an answer which he knows or
believes to be false or does not believe it is true, is liable to be punished u/s.
193 IPC for giving false evidence.
• In Nandini Satpathy v. P.L. Dani, (1978)2 SCC 424, Supreme Court held that
“any person supposed to be acquainted with facts and circumstances of the
case” includes an accused.
• Having committed the crime, he must be familiar with the facts and
questioning a suspect is desirable for detection of crime and even for
protection of accused.
• Such person has protection u/s. 161(2) and Art. 20(3) against questions,
answers to which would have a tendency to expose him to a criminal charge.
Accused may keep silence or refuse to answer when confronted with
incriminating questions.
• The area covered by Art. 20(3) and S. 161(2) is substantially the same and S.
161(2) is parliamentary gloss on the constitutional clause—Nandini Satpathy.
Supreme Court concluded as follows:
• We hold that S. 161 enables the police to examine the accused during
investigation. The prohibitive sweep of Art. 20(3) goes back to the stage of
police interrogation—not as contended, commencing in court only.
• But in Mohd. Azmal Amir Kazab v. State of Maharashtra, (2012) 9 SCC 1,
Supreme Court held that Nandini Satpathy does not create any absolute right
to be silent during police interrogations.
• (2) Recording of statements: Investigating officer may reduce into writing any
statement made to him in the course of examination.
• He shall make a separate and true record of statement of each such person
whose statement he records—S. 161(3).
• If he makes only one joint statement of several witnesses during
investigation, such a statement is clearly in contravention of S. 161(3).
• However, that would not make those persons incompetent witnesses or
render their evidence inadmissible, it can only affect the weight of their
evidence—Tilkeshwar Singh v. State of Bihar, AIR 1956 SC 238.
• Person making the statement to Investigating officer is not required to sign it
because that might lead to abuse of power by police. It may facilitate police
officer to obtain signature of a witness by compulsion and at trial witness will
find it difficult to go against the statement recorded by police, though he
may be anxious to state the truth before court.
• S. 162(1) clearly enjoins that “no statement made by any person to a police
officer in the course of investigation and reduced to writing be signed by the
person making it”. It is a statutory safeguard.
• If the police officer has by mistake obtained the signature of the accused on
the seizure memo in violation of S. 162(1), it shall not vitiate the whole
proceeding—State of Rajasthan v. Teja Ram, (1999)3 SCC 507.
• Proviso to S. 161(3) now facilitates recording of statements of witnesses by
audio-video electronic means.
• The statement of woman against whom a sexual offence punishable under
IPC is alleged to have been committed shall be recorded either by a woman
police officer or by a woman officer—proviso to S. 161(3).
• To ensure that statements made to police during investigation are not
affected by fear or favour, no police officer shall offer or make any
inducement, threat or promise – u/s. 24 Evidence Act.
• However, no police officer shall prevent, by a caution or otherwise, any
person from making during investigation any statement, which he may be
disposed to make of his own free will—S. 163.
• EVIDENTIARY VALUE OF STATEMENTS MADE TO POLICE
• Statements made to police are of three categories:
• 1. Statement which has been recorded as an FIR
• 2. Statement recorded by police in the course of investigation, and
• 3. statement recorded by the police, but not falling under (1) or (2) above
• None of them can be considered substantive evidence i.e., evidence of facts
stated therein because the statement is not made during trial, not given on
oath and not tested by cross-examination.
• Person making statement before police, may subsequently appear and give
evidence in court at the trial. His former statement could be used to
corroborate or contradict his testimony according to (S. 157 and 145) of
Evidence Act.
• If any statement made to a police officer amounts to a confession, such a
confession cannot be proved against a person accused of any offence—S.25
of Evidence Act.
• However, S. 27 of Evidence Act provides that when any fact is deposed to as
discovered in consequence of information received from a person accused of
any offence in custody of police officer, so much of such information, whether
it amounts to confession or not, distinctly relating to fact discovered, may be
proved.
• (1) Evidentiary value of FIR: FIR is not substantive evidence. But it can be
used to corroborate the informant u/s. 157 or contradict u/s. 145 Evidence
Act.
• FIR cannot be used to corroborate or contradict any witness other than the
one lodging the FIR—Hasib v. State of Bihar, (1972) 4 SCC 773.
• FIR would have better corroborative value if it is recorded before there is
time and opportunity to embellish or before informant’s memory fails. Undue
and unnecessary delay in lodging FIR give rise to suspicion which puts the
court on guard to look for possible motive and trustworthiness or otherwise
of the prosecution version—Apren Joseph v. State of Kerala (1973) 3 SCC
114.
• Absence of names of accused and eye witnesses In FIR is an important
circumstance but omission loses significance if FIR is from a person other an
eyewitness—Pandurang v. State of Hyderabad, AIR 1955 SC 216.
• If FIR is given to police by accused himself, it cannot possibly be used for
corroboration or contradiction because accused cannot be a prosecution
witness and he would rarely offer to be a defence witness u/s. 315.
• If FIR is confessional in nature, it cannot be proved against the accused u/s.
25 IEA. But it might become relevant u/s. 8 IEA as to his conduct.
• If FIR is non confessional, it may be admissible in evidence against accused
as admission u/s. 21 IEA or showing his conduct u/s. 8 of IEA.—Agnoo
Nagesia v. State of Bihar, AIR 1966 SC 119.
• Generally speaking, contents of FIR can be used only to contradict or
corroborate the maker thereof.
• There may be cases where contents of FIR become relevant and can be put
to some other use also.
• Omissions of important facts affecting probabilities of the case are relevant
in judging the veracity of prosecution case—Ram Kumar Pandey v. State of
M.P., (1975) 3 SCC 815.
• (2) Evidentiary value of statement recorded during investigation:
• S. 162 substantially modify the normal rule of evidence in respect of use of
previous statement of a witness for corroboration or contradiction. Object is
enacted to protect the accused both against overzealous police officers and
untruthful witnesses—Khatri(IV) v. State of Bihar, (1981)2 SCC 493.
• (a) S. 162 provides: Any statement made by any person to a police officer in
the course of investigation can be used on for purposes for and not for any
other purposes at any inquiry or trial in respect of any offence under
investigation at the time when such statement was made.
• Supreme Court, considering the relative objectives and spheres of S. 162 of
Code and S. 165 IEA, held that restrictions on the use of previous
statements of witnesses imposed by S. 162 are confined to their scope to
the use by the parties to the proceeding of such statement.
• Court, while examining a person as court witness u/s. 311 or asking any
question u/s. 165 IEA may make use of his previous statement and
restrictions on the use of his previous statement in S. 162 are not applicable
in such a case—Ragunandan v. State of U.P., (1974)4 SCC 186.
• Accused’s lawyer could be permitted to refer for cross-examination of a
statement of a witness recorded u/s. 161 in connection with an incident that
took place in the same night in which the offence under inquiry occurred—
Surendran v. State, 1994 Cri LJ 464 (Ker).
• Protection is unnecessary in any proceeding other than an inquiry or trial in
respect of the offence under investigation. Bar created u/s. 162 has no
application in a civil proceeding or in a proceeding under Ar. 32 or 226 of
Constitution. Statement made before a police in the course of investigation
can be used as evidence in such a proceeding, provided it is otherwise
relevant under the Evidence Act—Khatri (IV) v. State of Bihar, (1981) 2 SCC
493.
• (b) Previous statement can be used in a trial, if the person making statement
is examined as a prosecution witness. That means, the statement cannot be
used if the person is examined as defence witness.
• (c) Statement can be used for the purpose of contradicting such prosecution
witness in the manner provided by second part of S. 145 IEA. Statement
cannot be used for cross examining a witness within the meaning of first part
of S. 145 IEA.
• (d) Statement can be used for the purpose of contradicting the prosecution
witnesses i) by defence, or (ii) with the permission of the court by the
prosecution—Koli Nana Bhana v. State of Gujarat, 1986 Cri LJ 571.
• (e) If any part of previous statement is used for contradiction, any part of the
statement can be used in re-examination of the witness for the only purpose
of explaining any matter refereed to in his cross-examination.
• If public prosecutor failed to get the contradiction explained as permitted by
last limb of S. 162(1), it is not possible for him to use power u/s. 172 for
explaining such contradiction—Mahabir Singh v. State of Haryana, (2001) 7
SCC 148.
• Previous statement constitutes the entirety of facts stated by a witness when
he was examined on different dates by the same investigator or different
investigators—Asan Tharayil Baby v. State of Kerala, 1981 Cri LJ 1165.
• (f) S. 162 implicitly prohibits use of statements made to police during
investigation for the purpose of corroboration – based on assumption that
police cannot be trusted for recording the statements correctly.
• Statements cannot be relied on by prosecution for corroboration as
statements records might of a self-serving nature.
• Statements are often recorded in a haphazard manner in the midst of crowd
and confusion.
• If a person whose statement is recorded by police is called as defence
witness, his previous statement cannot be used for contradicting him. It is
improper to allow a witness to be contradicted by the opposite party.
• Bar of s. 162 will not be attracted, if the statement is used in any
proceeding, inquiry or trial in respect of an offence other than which was
under investigation when such statement was made.
• S. 162 only puts restriction on the use of statements made to investigating
officer. Every statement made during investigation does not come under the
bar.
• Where investigation has already begun on the basis of the FIR, and in
respect of the same offence, another report is made quite independently of,
and in no relation to the pending investigation and was not designed to
promote the pending investigation, second report is not hit by the ban u/s.
162—Vattaparambil Thomas v. State of Kerala, 1974 Cri LJ 849.
• Every statement made to a person assisting the police during investigation
cannot be treated as a statement to the police. Statement of panchas found
in the pre-tap and post-trap panchnamas in a corruption case do not fall
within the phrase “statement made to police officer” u/s. 162. such previous
statements could be used for corroboration u/s. 157 IEA—Vishnu Krishna
Belurkar v. State of Maharashtra, 1975 Cri LJ 517.
• If a person, in response to questions put by the police identifies a property
or person by finger touch, nod or express words, such communication is hit
by S. 162(1)—Ramkishan Mithanlal Sharma v. State of Bombay, AIR 1955
SC 104.
• As per Explanation to S. 162, omission to state a fact or circumstance in the
recorded statement may amount to contradiction.
• Every omission may not amount to contradiction. An omission can amount
to contradiction if it appears to be significant and otherwise relevant having
regard to the context in which such omission occurs.
• Whether “any omission amounts to a contradiction in the particular context
shall be a question of fact”.
• Eg., In the recorded statement, witness states that he saw A stabbing B at a
particular point of time, but in the witness box he says that he saw A and C
stabbing B. The word ‘only’ in the statement to the police can implied to
mean that witness say only A stabbing B. Omission of the word ‘only’ may
amount to contradiction.
• In the recorded statement, witness says that a dark man stabbed B but in
witness box he says that the culprit was fair complexioned. The earlier
statement must be deemed to contain the recital that the culprit was dark
complexioned and not of fair complexion. Omission in the previous
statement would in this case amount to contradiction.
• S. 162(2) specifically provides that restrictions imposed by S. 162(1) shall
not apply in respect of statements falling u/s. 32(1) (dying declaration) and
also in respect of statements u/s. 27 Evidence Act.
• (3) Relevancy of statements made during the period of investigation but
during the course of investigation:
• Restrictions imposed by S. 162(1) are applicable only to statements made
during the course of investigation.
• Any other statement during investigation but not during the course of
investigation is not hit by S. 162(1). Such statements can be used for
corroboration or contradiction under normal rules in 145 and 157 IEA.
• An anonymous letter sent by accused to the police officer complaining
against a chowkidar, (who was murdered ultimately by the accused) was not
hit by S. 162(1) and it was admissible as an admission as to motive u/s. 21
IEA—Baleshwar Rai v. State of Bihar, (1964) 1 Cri LJ 564.
• However, investigating officer cannot be permitted to circumvent the
prohibition by asking the person for a written statement in stead of
recording his statement—Kali Ram v. State of H.P., (1973) 2 SCC 808.
• POWER OF JUDL. MAGISTRATE TO RECORD CONFESSIONS & STATEMENTS
• Confession made to police officer is totally inadmissible and statements
recorded by police in the course of investigation cannot be used for any
purpose other than those mentioned in S. 162.
• Police is not considered trustworthy. If power is given to the police to record
confessions and statements, it is likely to be misused and it may be used to
extort or fabricate confessions and manipulate statements.
• A special procedure is provided in S. 164 for recording confessions and
statements during investigation by competent Judl. Magistrates;
• This is to ensure that confessions or statements are made freely and
voluntarily and not under any pressure or influence.
• Confession or statement of accused recorded u/s. 164 can be used as
substantive evidence. U/s. 80 Evidence Act, such record is presumed to be
genuine, circumstances under which confession is recorded is true and
confession given voluntarily.
• The Magistrate is not examined as a witness at the trial
• Non-confessional statement recorded u/s. 164 is not substantive evidence.
• But maker when called as witness at trial, his earlier statement can be used for
corroborating or contradicting his testimony in court u/s.157 or 145 IEA.
• U/s. 164(5), upon receipt of information of rape, (1) Investigating Officer shall make
immediate steps to take the victim to JFCM or Metropolitan Magistrate for recording
statement. (2) Investigating Officer shall, as far as possible, take the rape victim to the
nearest lady Magistrate. (3) Investigating Officer shall in the record specifically the date
and time at which he learned about the commission of offence, time at which he took the
victim to the Magistrate—These are responsibilities fixed on IO under S. 164(5)(a)
inserted through amendment after Nirbhaya Rape Case in 2012.
• Statement of a woman recorded under S. 164(5)(a) can be used as examination-in-chief
(as specified in 137 IEA) and she can be cross examined on such statement.
• In Ramprasad v. State of Maharashtra, (1999) 5 SCC 30, Supreme Court ruled that
statement recorded by the Magistrate u/s 164 becomes reliable for corroborating the
witness u/s. 157 or to contradict him u/s. 155.
• The following points emerge on an analysis of S. 164:
• 1. A confession or statement can be recorded only by a Metropolitan or Judl. Magistrate.
No such confession can be recorded by a police officer conferred with the power of a
Magistrate under any law—S. 146(1).
• If Exe. Magistrate/other Magistrate records a confession, that cannot be put in evidence
and oral evidence of such Magistrate to prove confession is not admissible.
• When statute confers power on judicial officers, that power can be exercised
only by those officers—State of UP v. Singhara Singh, AIR 1964 SC 358.
• 2. Confession or statement can be recorded in the course of investigation or
at any time afterwards before commencement of inquiry or trial—S. 164(1)
• 3. Before recording confession, Magistrate is required to explain to the
person making confession that a) he is not bound to make such a confession,
and b) if he does so it might be used as evidence against him—164(2)
• Magistrate has a duty to in this respect and he should disclose his identity to
assure the person that he is no longer in the hands of the police—Sanatan
Badchat v. State, AIR 1953 Ori 149.
• S. 164(4) requires the Magistrate to mention, inter alia, the fact of giving the
aforesaid warning to the person making confession.
• But there is no need to record Magistrates’ satisfaction. Nor is there any
obligation to provide legal aid at this stage—State of Rajasthan v. Darbara
Singh, 2000 Cri LJ 2906(Raj)
• 4. Magistrate shall not record such confession unless, upon questioning the
person, he has reason to believe that it is being made voluntarily—S.
164(2)—Shivappa v. State of Karnataka, (1995) 2 SCC 76.
• In Chandran v. State of T.N. (1978) 4 SCC 90, Supreme Court observed that
expression “has reason to believe” imports a very high degree of expectation
wrought by reason, a satisfaction fast-rooted in terra firma, free from doubt
as to the truth of the fact perceived and believed.
• To ensure that a confession is made voluntarily, Magistrates follow the
following directions:
• A) After warning the person making confession, Mag. Should give him
adequate time to think and reflect. It is of utmost importance to ensure that
the mind of such a person is completely free from any possible police
influence—Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637.
• Normally such person in police custody is sent to judicial custody at least for
a day before confession is recorded.
• (b) Every inquiry must be made from accused as to the custody from which
he was produced and custody to which he was to be consigned and
treatment he had been receiving in such custody, to ensure that there is no
scope of extraneous influence proceeding from a source interested in the
prosecution still lurking in the mind of the accused person—Gurubaru Praja
v. Kind, AIR 1949 Ori 67.
• If marks of injuries are found on the person of the accused, he should be
asked how he received them—Sarwan Singh, AIR 1957 SC 637.
• (c) If accused is handcuffed, Magistrate should order police to remove the
handcuffs and police and others who may wield influence should be ordered
out of court in order to create a free atmosphere.
• (d) Accused should be assured, in plain terms, of protection from any sort of
apprehended torture or pressure from such extraneous agents like police if
he decline to make a confession—Gurbara Praja, AIR 1949 Ori 67.
• If the person tells the court any time before making confession that he is not
willing to make the confession, Magistrate is not to authorize his detention in
police custody—S. 164(3). Even otherwise, after confession is made and
recorded, accused, as a matter of rule, should be sent to judicial custody.
• (e) Accused should particularly be asked the reason why he is going to make
a statement which should surely go against his self-interest and he should be
told (to remove any lurking suspicion in his mind) that even if he contrives
subsequently to retract the confession, it will still be evidence against him.
• (f) Magistrate recording confession must appreciate his function as a Judicial
Officer and he must apply his judicial mind to the task of ascertaining that
accused is making statement of his own accord and not on account of any
pressure on him.
• Magistrate must put questions to ascertain voluntariness of the confession
and record of confession must show that questions were so asked to
ascertain voluntariness.
• 5. Confession is to be recorded in the manner provided by S. 281 for
recording of examination of an accused person—Magistrate should not
administer oath—Akanman Bora v. State of Assam, 1988 Cri LJ 573 (Gau).
• Every question put to accused and every answer given by him shall be
recorded in full.
• The record, as far as practicable, shall be in the language in which accused
gave confession. Record shall be shown or read to the accused, and if he
does not understand, shall be interpreted to him in a language he
understands and he shall be at liberty to explain or add to his answers.
• Confession so recorded shall be signed by the accused person making
confession.
• However, where confession is recorded by a Metropolitan Magistrate, as per
S. 164(4) r/w S. 281(1), it shall be enough if the Magistrate makes a
memorandum of substance of the confession in the language of the court
and signs the same.
• Yet Met. Magistrates prefer to follow recording of confession u/S. 164.
• U/S. 164(4) confession shall be signed by the person making it.
• Magistrate is required to make the following memorandum at the foot of
such record:
• “I have explained to (name) 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.
• Signed AB
• Magistrate”
• 6. S. 164 does not mention about the place and time of recording
confession. SC held in Hem Raj Devilal v. State of Ajmer, AIR 1954 SC 46,
Magistrate should record confession in open court during court hours.
• 7. S. 164(5) states that any statement (other than confession) made to a Met.
Magistrate or Judl. Magistrate by any person during investigation or at any
time before inquiry or trial, is to be recorded by him in the manner provided
in S. 272-280, best fitted to the circumstances of the case, according to him.
Magistrate may administer oath to the person before statement is recorded.
• A statement is recorded u/s. 164 to pin him down. Such statement can be
admitted in evidence in other cases started on FIR lodged subsequent to
recording of statement—State of Orissa v. Ghanashyam Mohanty, 1987 Cri
LJ 1009 (Ori).
• It is also recorded because a statement made soon after the incident are far
more trustworthy than later denials and embellishments—Ramjit Rajbhar v.
State of W.B., 1992 Cri LJ 372 (Cal)
• Such statement is not substantive evidence; it can be used for corroborating
or contradicting u/s. 157 and 145 IEA, when the person gives evidence in
court. Evidence of such witness must be approached with caution—Baburao
Bajirao Patil v. State of Maharashtra, (1971) 3 SCC 432.
• Reason: witness is likely to feel tied to his previous statement given on oath
fear probable prosecution for perjury.
• Police officer has the obligation to get the statement of a woman or
physically or mentally disabled, who alleges a sexual offence punishable
under IPC by a Magistrate u/s. 164 before FIR is registered.
• Statement so recorded shall be considered as examination in chief during
trial and the person can be cross examined referring to the statement----S.
164(5A)(c).
• Refusal of Magistrate to record statement u/s. 164 does not affect fair trial,
as it is purely discretionary for him to record statements of witnesses under
this provision—Dhaneshwar Mallik v. State of Orissa, 1992 Cri LJ 1711 (Ori).
• Courts should be vigilant in recording statement u/s.164 because such
statements could be misused by accused during trial to turn the case in his
favour—Jogendra Nahek v. State of Orissa (2000)1 SCC 272.
• 8. Magistrate recording the statement or confession u/s. 164 is required to
send the record directly to the Magistrate by whom the case is to be
inquired into or tried– 164(6). Such record is admissible in evidence, even
though the Magistrate who recorded it is not called as witness (S. 80 IEA).
• 9. S. 463 takes care of question as to legal consequences of non-compliance
of S. 164. If court to which the recorded statement or confession is tendered
finds that the Magistrate who recorded the same has not complied with any
of the provisions of S. 164 (notwithstanding S. 91 IEA), take evidence in
regard to non-compliance and if satisfied that such non-compliance has not
• Injured the accused or his defence, admit the statement.
• U/s. 91 IEA, if any matter is required by law to be reduced to the form of a
document, no evidence shall be given in proof of such matter except the
document itself. S. 463 lifts this embargo, if the accused is not injured by the
recording of the statement.
• By decision in Nazir Ahmad v. King Emperor, AIR 1936 PC 253 & State of
UP v. Singhara Singh, AIR 1964 SC 358, it is now settled that if Magistrate
recording statement, neglects to follow the procedure prescribed by S. 164,
oral evidence of the confession is totally inadmissible.
• S. 463 only permits oral evidence to prove that procedure laid down in S.
164 had actually been followed, which the record does not show.
• In view of specific provisions in S. 29 IEA, mere absence of warning u/s. 164
would not make the confession inadmissible, provided the court is satisfied
that the accused knew that he was not bound to make the confession and
that if he did so it would be used as evidence against him—Jotish Roy v.
State, 1982 Cri LJ 269.
• 10. Word ‘may’ in S. 164(1) does not denote that Magistrate has full
discretion to record or not to record confession according to procedure in S.
164. Power is given to do a thing in a certain way or not at all. The
discretion granted is only for the purpose of giving true effect to S. 164.
• Magistrate would not be obliged to record confession by a self-accusing
madman if the Magistrate thought it to be incredible or useless for the
purpose of justice—Nazir Ahmad v. King Emperor, AIR 1936 PC 253.
• 11. S. 164 is applicable to confessions and statements recorded by
Magistrate during course of investigation or at any time afterwards before
commencement of inquiry or trial. If confession is recorded when no
investigation had begun, mandatory procedure in S. 164 is not applicable.
• To ensure that proper evidence is available in rape cases, S. 164A provides
that in case the victim of rape or attempted rape is proposed to be examined
by medical expert, she should be examined by a med. Practitioner employed
by Govt. or local authority and in absence by a regd. Medical practitioner
with the consent of victim. Victim has to be examined within 24 hours.
• MAINTENANCE AND USE OF CASE DIARY
• According to S. 172(1), every investigating police officer is required to enter
daily, his proceedings in the investigation in a diary. The diary shall set forth
the time at which information reached the I.O., the time at which he began
investigation and closed it, place or places visited by him, and a statement of
the circumstances ascertained through his investion. – S.172(1).
• This is called the ‘case diary’ or special diary.
• Entries in such a diary should be made with promptness, in sufficient detail,
mentioning all significant facts, in careful chronological order and with
complete objectivity.
• It is to avoid concoction of evidence or changing chronology to suit
investigator. It ensures transparency in investigation—State v. Anil Jacob,
2009 Cri LJ 1355 (Bom)
• Criminal Court can ask for the police diary in a case under inquiry or trial and
use such diary, not as evidence, but to aid it in such inquiry or trial-S. 172(2)
• In State of Kerala v. Babu, (1999) 4 SCC 621, SC ruled that it can be summoned by
the court de hors S. 172.
• Case diary is useful for elucidating points for discovery of relevant evidence. It is
not substantive evidence of any fact. A Crl. Court is not justified in reading
confessions and statements in case diary and by using them disbelieve prosecution
case or the defence case.—Narayanan v. Krishnan, 1981 Cri LJ 562 (Ker).
• Accused or his agents cannot call for the diaries and they are not entitled to see
them merely because they are referred to by court.
• However, if police officer use the diary to refresh his memory, or if the court use it
for contradicting the police officer, S. 161 or S. 145 IEA shall apply—S. 172(3)
• Thus accused is allowed to use case diary for cross examination of police officer
who made it only under two circumstances:
• 1. If the police officer while giving evidence refreshes his memory by referring to
the case diary (permissible u/s. 159 IEA). accused is then entitled to see the
relevant entries and may use them for cross-examination as provided in S. 161 IEA.
• 2. If the court uses the diary for the purpose of contradicting such a police
officer, in accordance with S. 145 IEA.
• Court cannot compel the police witness to look at the diary to refresh his
memory nor is the accused entitled to insist that he should do so—Shanshul
Kanwar v. State of UP (1995) 4 SCC 430.
• If there is failure to keep a diary as required by S. 172, it cannot have the
effect of making the evidence of such officer inadmissible and what inference
should be drawn in such a situation depends on the facts of each case.
• Supreme Court, however, suggested legislative change for providing for
framing of appropriate and uniform regulations regarding maintenance of
diaries by the police.
• PROCEDURE WHEN INVESTIGATION CANNOT BE COMPLETE WITHIN 24 HRS
• A person arrested without warrant cannot be detained by police for more
than 24 hours—S.57
• Police can detain such a person beyond 24 hours only after obtaining a
special order of a Magistrate u/s. 167.
• Object is that persons arrested are brought before Magistrate with the least
possible delay so that the Magistrate could decide whether persons arrested
should be kept in custody and also to allow them to make such
representation as they may wish to make—Chadayam Makki Nandanam v.
State of Kerala, 1980 Cri LJ 1195.
• S. 167 brings out the following points:
• 1. Whenever a person is arrested and detained in custody and investigation
cannot be completed within 24 hours fixed by S. 57, and there are grounds
for believing that accusation or information is well-founded, SHO or police
officer making investigation (not below SI) shall forthwith transmit copies of
entries in case diary to the nearest Judicial Magistrate and simultaneously
forward the accused to the Magistrate—S.167(1).
• Where Judicial Magistrate is not available, copies of entry of case diary and
accused person be transmitted to nearest Executive Magistrate on whom
powers of Judl. Or Metropolitan Magistrate have been conferred—S.167(2A)
• 2. The Magistrate to whom the arrested person is forwarded, whether he has
jurisdiction or not, authorize detention of such person in custody for a period
he may think fit, for a term not exceeding 15 days on the whole. If the said
Magistrate has no jurisdiction to try the case or commit it for trial but
considers further detention of the person necessary, he may order the
accused to be forwarded to a Judl. Magistrate having jurisdiction—S. 167(2)
• If the arrested person is produced before Exe. Magistrate (167(1), he may,
for reasons to be recorded in writing, authorize detention in such custody for
a term not exceeding seven days in the aggregate- S. 167(2A).
• He shall transmit the person detained to the nearest Judicial Magistrate
along with copies of entries in case diary-Proviso to S. 167(2A).
• Nature of custody can be altered from police custody to judicial custody or
vice versa during such period of detention. After 15/7 days mentioned in S.
167(2), accused can only be kept in judl. Custody or any other custody, but
not police custody—State (Delhi Admn.) v. Dharam Pal, 1982 Cri LJ 1103.
• 3. No Magistrate shall authorize detention in any custody u/s. 167 unless the
accused is produced before him—Proviso (b) to S. 167(2)
• Object is to enable Magistrate to decide judicially whether remand is
necessary and also to enable accused to make representation to Magistrate
to controvert the grounds on which police has asked for remand—Ramesh
Kumar Ravi v. State of Bihar, 1987 Cri LJ 1489 (Pat). Raj Kumar Singh v.
State of Bihar, (1986) 4 SCC 407; K.A. Abbas v. Satyanarayana Rao, 1993
Cri LJ 1948 (Kant)
• For proof of production, Magistrate may obtain signature of accused on the
order authorizing detention– Expln. II to proviso to S. 167(2).
• Magistrate must apply judicial mind to whether or not detention of accused
is necessary.
• Detention order should not be passed mechanically as a routine order on the
request of police for remand—Madhu Limaye re, (1969) 1 SCC292 – State of
Gujarat v. Swammi Amar Jyoti Shyam, 1989 Cri LJ 501 (Guj).
• Extending remand, accepting a rubber-stamped endorsement to the effect
that accused could not be produced for want of police guard is illegal—
Subash v. State of M.P., 1989 Cri LJ 1553 (MP).
• After 2008 amendment to the Code, extension of detention in judl. Custody
through video linkage is permissible—First proviso to S. 167(2)
• 4. Magistrate has full discretion to order detention in police or judl. Custody.
• No Magistrate of second class, not duly authorized by High Court can
authorize detention of accused in police custody – para (c) of proviso to S.
167(2).
• Accused cannot be remanded to police custody on expiry of 15 days –
Proviso (a) to S. 167(2)
• 5. When decision is taken in exercise of judl. discretion, it is generally
desirable to record reasons. It is specifically stated that Executive Magistrate
can authorize detention “for reasons to be recorded in writing”—S. 167(2A)
• Magistrate authorizing detention in police custody shall record his reasons
for doing so—S. 167(3).
• 6. Judl. Magistrate, if satisfied that detention beyond 15 days is necessary, may do
so. In such case,
• (a) detention shall be in custody other than police custody; and
• (b) total period of detention including initial period of 15 days (and detention
ordered by Exe. Magistrate) shall not exceed 90 days, where investigation relates
to an offence punishable with death, imprisonment for life or imprisonment for a
term of not less than 10 years
• and 60 days where investigation relates to any other offence—Para (a) of proviso
to S. 167(2).
• Limit of police custody not exceeding 15 days on the whole in 167(2)(a) is
applicable only in a single case and is not attracted to a series of different cases
requiring investigation against the same accused—S. Harsimran Singh v. state of
Punjab, 1984 Cri LJ 253.
• Period of 90 days or 60 days is to be computed from the date the Magistrate
authorizes detention—Jai Singh v. State of Haryana, 1980 Cri LJ 1229.
• Day of arrest or surrender before court may have to be excluded—Feroz v. State,
1986 Cri LJ 409.
• 7. On expiry of 90/60days, accused shall be released on bail if he is
prepared to and does furnish bail and any person so released on bail shall
be deemed to be so released u/Ch. XXXIII of the Code dealing with bail and
bonds—Para(a) of proviso to S. 167(2).
• Provision applies irrespective of the fact whether the offence is non-bailable
or bail cannot be granted according to Ch. XXXIII. Once bail is granted,
provision of Ch. XXXIII have been made applicable.
• Bail granted is valid, until cancelled, and cancellation of a bail can only be on
grounds known to law, and receipt of charge-sheet in court by itself can be
no ground for cancellation of bail—Bashir v. State of Haryana, (1977) 4 SCC
410; Mohd. Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722.
• To be within time limit, police has to submit its complete report. Unless the
court takes the report on record and keeps it on its file or examines it for
deciding whether cognizance should be taken or not, it cannot be said that a
police report is filed as contemplated u/s. 173(2).
• 8. Any Magistrate other than CJM, making an order of detention u/s. 167(2)
shall forward a copy of his order, with reasons, to the CJM – S. 167(4). This
enables CJM to exercise control in such matters in his supervisory capacity.
• 9. In summons case, if investigation is not completed within 6 months,
Magistrate shall order stopping further investigation, unless Investigation
Officer satisfies the Magistrate that for special reasons and in the interests of
justice continuation of investigation beyond six months is necessary—S.
167(5).
• If Magistrate stops investigation but Sessions Judge is satisfied, on
application made to him or otherwise, he may vacate the order and direct
further investigation, subject to such directions with regard to bail and other
matters he may specify—S. 167(6).
• Duties of police officer and court u/s. 167(5) are independent. Therefore,
police officer has to move the court for order permitting continuation of
investigation beyond six months before Magistrate orders stoppage.
• Investigation beyond six months without permission of Magistrate does not
automatically nullify the continuance of trial.
• Magistrate may take cognizance of the case even after six months.
• Failure of the court to order stoppage investigation beyond six months u/s.
167(5) will not ipso facto be deemed to be an implied permission by court
to investigating officer to continue investigation. Such continuation could be
permitted by court only for special reasons and in the interest of justice–
State v. Jai Bhagwan, 1985 Cri LJ 932 (Del); C. Bhaskaran Nair v. State of
Kerala, 1987 Cri LJ 170 (Ker).
• Before the investigation is dropped, complainant should be heard—UPSC v.
Papaiah (1997)7 SCCC 614.
• PROCEDURE TO BE FOLLOWED ON COMPLETION OF INVESTIGATION
• (1) RELEASE OF ACCUSED WHEN EVIDENCE IS DEFICIENT: If on completion
of investigation, it appears to the Investigating officer that there is no
sufficient evidence or reasonable ground of suspicion to justify the
forwarding of accused to Magistrate, I.O. shall release him on executing a
bond, with or without sureties, to appear if and when so required before
Magistrate empowered to take cognizance of the offence on police report to
try the accused or commit him for trial– S. 169.
• (2) Case to be sent to Magistrate when evidence is sufficient: The following
procedure is to be followed if accused is forwarded to the Magistrate:
• (a) If upon investigation there is sufficient evidence or reasonable ground to
justify the forwarding of accused to magistrate, SHO shall forward accused
under custody to competent Magistrate, or if offence is bailable and accused
gives security, shall take security from him for appearance before
Magistrate—S. 170(1); and
• (b) in such case, SHO shall send to the Magistrate any weapon or other
article to be produced before him, and shall require the complainant (if any)
and witnesses to execute a bond to appear before Magistrate and prosecute
or give evidence in the matter of charge against accused—S. 170(2)
• Complainant or witnesses are not required to accompany a police officer to
court or to give a bond for appearance.
• If such person refuses to attend or execute a bond as directed by S. 170(2),
SHO may forward him to custody until he executes bond or until the hearing
of the case is completed—S. 171
• (3) Report of police on completion of investigation: The following points to
be ensure before a police report is submitted:
• (a) Every investigation is required to be completed without unnecessary
delay—S. 173(1). As soon as investigation is completed, a report is to be
submitted to Magistrate having jurisdiction. If report alleges commission of a
crime by an accused person, report is commonly called “charge-sheet” or
“challan”.
• (b) Report is to be in the form prescribed by the State Govt. stating:
• (i) names of parties;
• (ii) the nature of information;
• (iii) names of persons who appear to be acquainted with the circumstances of
the case;
• (iv) whether any offence seems to have been committed and if so by whom;
• (v) whether the accused has been arrested;
• (vi) whether he has been released on bond – with or without sureties;
• (vii) whether he has been forwarded in custody u/s. 170
• (viii) whether report of medical examination of the woman has been attached
where investigation relates to an offence u/ss. 376, 376A, 376B, 376C,
376D or 376E IPC;
• (c) the officer shall also communicate, in the manner prescribed by State
Govt., action taken by him to the person giving the FIR – S. 173(2)
• (d) The report shall normally be submitted through a superior police officer
appointed u/s. 158 and such officer may, pending orders of Magistrate,
direct SHO to make further investigation—S. 173(3)
• (e) When such a report is in respect of a case to which S. 170 applies
(evidence sufficient), police officer shall forward to Magistrate along with
report (i) all documents or relevant extracts thereof on which prosecution
proposes to rely, and (ii) statements recorded u/s. 161 of all persons whom
the prosecution proposes to examine as its witnesses- S. 173(5).
• If police officer is of opinion that any part of such statement is not relevant to
subject matter of proceedings or that its disclosure to accused is not essential in
the interests of justice and is inexpedient in public interest, he shall indicate that
part of the statement and append a note requesting the Magistrate to exclude that
part from copies to be granted to accused and stating his reasons for making such
a request—S. 176(3)
• Police report u/s. 173 will contain facts and conclusion drawn by police.
• Magistrate is expected to apply his judicial mind to the report. He is not bound by
conclusions of police; he may differ from police report – in charge sheet or final
report.
• Police need not submit report in accordance with the version of complainant,
irrespective of result of investigation—Valummel Thommachan v. State, 1994 Cri
LJ 1738 (Ker).
• If there is protest against police report, Magistrate can deal with it u/s. 200-204,
as if it is a complaint-Ashok v. State of UP, 1994 Cri LJ 2132 (All)
• Magistrate may issue process even if police recommended no sufficient ground for
proceeding further– H.S. Bains v. State (UT of Chandigarh) (1980) 4 SCC 631
• In case the Magistrate decides not to take cognizance of offence and to drop
the proceedings or takes the view that there is no sufficient ground for
proceeding against some persons mentioned in FIR, Magistrate must give
notice to the informant and provide him an opportunity to be heard at the
time of consideration of report—Bhagwant Singh v. Commr. Of Police,
(1985) 2 SCC 537; JK International v. State (NCT of Delhi) (2001) 3 SCC 462
• This requirement is not applicable after Magistrate has taken cognizance—
Gurcharan Singh v. Suresh Kumar Jain, 1988 Cri LJ 823 (Del)
• In all proceedings instituted on police report, Magistrate shall furnish to
accused copies of documents mentioned in S. 207, including those
documents mentioned in S. 173(5).– S. 173(7)
• (4) Supplementary report on further investigation: Nothing in S. 173
preclude further investigation in respect of an offence after report u/s.
173(2) forwarded to Magistrate.
• If SHO obtains further evidence, he shall forward to the Magistrate a further
report regarding such evidence in prescribed form—S. 173(8). This is
continuation of earlier investigation and not a fresh investigation or
reinvestigation to be started ab initio wiping out the earlier investigation
altogether—K. Chandrasekhar v. State of Kerala, (1998) 5 SCC 223.
• Further investigation can be carried out by investigating agency if it comes
across new material without. For this approval of judiciary is not necessary
u/S. 173(8)—Ram Saran Varshney v. State of UP, 2009 Cri LJ 1790 (All).
• In Manoj Narain Agarwal v. Shashi Agarwal, (2009) 6 SCC 385, it was stated
that it was desirable to keep the court informed of further investigation.
• A Magistrate after taking cognizance of offence on the basis of police report
and after appearance of accused cannot order further investigation—Randhir
Singh Rana v. State (Delhi Admn), (1997) 1 SCC 361
• INVESTIGATION AND INQUIRIES INTO CAUSE OF UNNATURAL DEATHS, SUICIDES,
OF DEATH IN POLICE CUSTODY ETC.
• These matters are contained in Ss. 174-176. S/176(1A) inserted in 2005 provides
that in case of death in custody or rape in police custody, court can conduct
inquiry other than the police investigation. The dead body should be got examined
by a civil surgeon or regd. Medical practitioner within 24 hours of death of the
person.
• TYPES AND NATURE OF PROCEEDING UNDER CRPC (IN BRIEF)
• INVESTIGATION/By police or other authorized person (other than a
Magistrate/Object & purpose: Collection of evidence for the purpose of any inquiry
or trial/Oath cannot be administered to the person examined or interrogated.
• INQUEST (1) By Police u/s.174/ Object and purpose: (a) Ascertainment of the cause
of death in cases of suicide, unnatural death, death caused in commission of crime
etc. Police is required to get the post-mortem examination done in cases of bride-
burning or bride suicides and in other case where there is doubt regarding the
cause of death/Police cannot administer oath to person summoned for
inquest./Inquiry into cause of death at the discretion of Magistrate
• (2) By Magistrate u/s. 176/Inquest by Magistrate is mandatory in cases of (i)
death of a person while in police custody; (ii) death in case of bride-burning
or bride-suicide/Magistrate may administer oath to persons to be examined
by him.
• INQUIRY/By a Magistrate or Court/Object and nature: Judicial determination
of any question (other than one relating to the guilt or innocence of any
person in respect of any offence alleged against him) under the Code/Oath
can be administered to the person to be examined.
• TRIAL/By Magistrate or Court/Object: Judicial determination as to the guilt or
innocence of any person accused of any offence/Oath can be administered to
the persons to be examined.
• LOCAL JURISDICTION OF COURTS AND POLICE
• Every State is divided into suitable territorial units for the purpose of
administration of justice. Separate courts have been established for these
separate units. It is expedient and desirable that enquiry or trial in respect of
any offence ordinarily take place in the nearest court to the place of crime.
• Witnesses would be readily available and it would be convenient for the
prosecution and defence.
• So the basic general rule is “Every offence shall ordinarily be inquired into
and tried by a court within whose local jurisdiction it was committed—S.177.
• Ss. 178 – 184 provide for alternative venues for enquiry and trial under
certain circumstances and in certain kinds of offences. In the following cases,
offence may be inquired into or tried by any court having jurisdiction over
any of the local areas mentioned therein:
• 1. It is uncertain in which of the several local areas, the offence was
committed—S. 178(a)
• 2. Offence partly committed in one local area and partly in another—178(b)
• 3. A continuing offence and is being committed in more than one local
area—S. 178(c). – A conspiracy to commit an offence is considered a
continuing offence and might be continued to be committed in more than
one local area—Abdul Khader Saleh Mohomed v. State, AIR 1963 Guj 234.
• 4. Offence committed consists of several acts and such acts are done in
different local area – S. 179.
• 5. When an act is an offence by reason of anything which has been done and
of a consequence which has ensued, if the thing has been done in one local
area and the consequence has ensued in another local area—S. 179. Eg. ‘A’
is wounded within the local jurisdiction of court X and dies within local
jurisdiction of Court Y. Offence of culpable homicide may be inquired into or
tried by Court X or Court Y.
• 6. An act is an offence by reason of its relation to any other act (which is also
an offence or which would be an offence if the doer was capable of
committing an offence) and these acts have been done in different local
areas-S. 180.
• (a) A charge of abetment may be inquired into or tried by court within whose
jurisdiction the abetment was committed or by court within whose
jurisdiction the offence abetted was committed. This principle would apply
only if the offence abetted is actually committed.
• (b) A charge of receiving/retaining stolen goods may be inquiry into or tried
by court in whose jurisdiction the goods were stolen or in whose jurisdiction
they were dishonestly received or retained.
• 7. Any offence of being a thug, or murder committed by a thug, of dacoity,
or dacoity with murder, of belonging to a gang of dacoits, or of escaping
from custody, was committed in one local area and the person accused of
such an offence was found in another local area—S. 181(1)
• 8. Offence of kidnapping or abduction of a person committed in one local
area and person so kidnapped was conveyed or concealed or detained in
another local area – S. 181(2).
• 9. Offence of theft, extortion or robbery committed in one local area and
stolen property possessed in another local area by any person committing it
or by any person receiving or retaining, knowing or having reason to believe
it to be stolen—S. 181(3)
• 10. Offence of criminal misappropriation or criminal breach trust committed
in one local area and subject matter received or retained or required to be
returned or accounted for in some other area by accused person-S. 181(4).
• 11. An offence which includes possession of stolen property committed in
one local area but the stolen property is possessed by any person who
received or retained it known or having reason to believe it to be stolen
property—S. 181(5).
• 12. An offence which includes cheating might be caused by deception
practiced by means of letters or messages. Such letters or messages were
sent in case of such an offence from one local area and received in another
local area-S. 182(1)
• 13. In the case of offence of cheating and dishonestly inducing delivery of
property, person deceived delivered the property in one area and property
received by accused person in another local area – S. 182(1).
• 14. Offence of bigamy punishable u/ss. 494 or 495 IPC committed in one
local area, place where offender last resided with his or her spouse by first
marriage and the place where the first wife took up a permanent residence
after commission of offence in another local area – S. 182(2).
• 15. An offence is committed in the course of a journey or voyage and person
by whom or against whom or thing in respect of which the offence is
committed passes into or through one or more local areas in the course of
such journey or voyage-S. 183
• Court having local jurisdiction at the place of termination of journey will also
be competent to try the accused for offence committed in the course of
journey—Charanjit Singh v. State of H.P., 1986 Cri LJ 173 (HP)
• SPECIAL RULE IN CASES OF JOINDER OR CHARGES/OFFENDERS
• S. 184- Where – (a) the offences committed by any person are such that he
may be charged with, and tried at one trial for, each such offence by virtue of
S. 219, 220 or 221, or (b) the offence or offences committed by several
persons are such that they may be charged with and tried together by virtue
of S. 223, the offences may be inquired into or tried by any Court competent
to inquire into or try any of the offences- S. 184.
• Provisions of S. 223 are not controlled by S. 177.
• POWER OF STATE TO ORDER CASES TO BE TRIED IN DIFFERENT SESSIONS
DIVISIONS
• Notwithstanding above rules, State Govt. may direct that any case (or class of
cases) committed for trial in any district may be tried in any sessions division.
However, such direction of the State Govt. is not to be repugnant to any
direction previously issued by the High Court or Supreme Court under
Constitution or any other law – S. 185.
• It is “an extraordinary power intended to be used only when some
consideration of public interest justifies the holding of a sessions trial in a
different sessions division”
• High Court or Supreme Court is free to give any direction overriding the
effect of the order passed by the State Govt. u/s. 185.
• HIGH COURT’S POWER TO DECIDE IN CASE OF DOUBT-PLACE OF INQUIRY
OR TRIAL.
• Where two or more courts have taken cognizance of same offence and
question arises as to which of them ought to inquire or try the offence, the
question shall be decided:
• (a) if the courts are subordinate to the same High Court, by that High Court
• (b) If the courts are not subordinate to the same High Court, by High Court
within whose appellate criminal jurisdiction the proceedings were first
commenced; and thereupon all other proceedings in respect of that offence
shall be discontinued– S. 186.
• MAGISTRATE’S POWER TO INQUIRE INTO AN OFFENCE COMMITTED OUTSIDE
HIS LOCAL JURISDICTION
• When a JFMC has reason to believe that any person within his local
jurisdiction has committed an offence outside such jurisdiction and that such
offence cannot be inquired into or tried under any law within such
jurisdiction, such Magistrate may inquire into the offence and compel such
person to appear before him and then either send such a person to the
Magistrate having jurisdiction to inquire into or try such an offence, or may
release him on bail if the offence is not punishable with death or
imprisonment for life—S. 187(1).
• If the Magistrate is not sure as to the Magistrate to whom such a person
should be sent, the case is to be reported to High Court for orders-S. 187(2)
• POWER TO INQUIRE INTO OR TRY OFFENCE COMMITTED OUTSIDE INDIA
• When an offence is committed outside India—
• (a) by a citizen of India, whether on the high seas or elsewhere; or
• (b) by a person, not being such citizen, on any ship or aircraft registered in
India,
• He may be dealt with in respect of such offence as if it had been committed
at any place within India at which he may be found—S. 188
• Such an offence can be enquired into or tried only after obtaining the
sanction of the Central Govt. – Proviso to S. 188.
• Object of seeking Central Govt. sanction appears to be to prevent accused
being tried all over again for the same offence in two different places.
• This object is secured by refusing to extradite the offender if he is wanted for
being tried in a foreign country subsequent to his trial in India and also by
refusing to sanction a prosecution against him if he has already been tried in
a foreign country for the same offence.
• If such offender was convicted and sentenced to nominal punishment or
acquitted after a colourable trial in a foreign court, and he is found later in
India, Central Govt. might give sanction to prosecute him for the same
offence.
• In Mohd. Sajeed K. v. State of Kerala, 1995 Cri LJ 3313(Ker) the court ruled
that what is prohibited in the proviso to S. 188 is only enquiry or trial
without previous sanction of Central Govt. and not investigation by police for
the purpose of collection of evidence.
• When such an offence is inquired or tried in India, Central Govt. may direct
that copies of depositions made or exhibits produced before a Judicial officer
in a foreign territory or a diplomatic or consular representative of India in
that territory shall be received as evidence by the court holding inquiry or
trial. Such direction can be given in any case in which the court might issue
a commission for taking evidence as to matters to which such deposition or
exhibits relate – S. 186.
• FAILURE TO FOLLOW RULE REGARDING JURISDICTION
• Jurisdiction of criminal court is of two kinds. One is with reference to the
power of the court to try the particular kind of offenders. Trial by a court
which is not empowered goes to the root of the matter and the entire trial
shall be void—S. 461(b)
• Non-compliance of territorial or local jurisdiction, may not lead to setting
aside of the trial as void, unless it appears that such non-compliance has in
fact occasioned a failure of justice—S. 462.
• Similarly, investigative proceedings taken by a police officer shall not be
called in question merely on the ground that the officer had no local
jurisdiction to take such proceedings—S. 156(2).
• COGNIZANCE OF OFFENCE: MEANING
• On completion of investigation and forwarding of final report to Magistrate,
the second important stage of fair trial commences.
• The Code envisages some preliminary steps to this second stage.
• 1) take cognizance of the offence;
• 2) to ascertain whether any prima facie case exists against the accused;
• If prima facie case exists, then a) issue process against the accused person to
secure his presence at the time of trial; b) to supply to the accused person
copies of police statements;
• 3) to consolidate different proceedings pertaining to the same; and
• 4) if case is exclusively triable by Sessions Court, commit case to that court.
• TAKING COGNIZANCE is the first and foremost step towards trial
• Taking cognizance means taking notice or becoming aware of the alleged
commission of an offence.
• Judl. Officer has to take cognizance before he proceeds to conduct a trial.
• Code has not defined or specifically explained “cognizance”. Meaning of the
expression has been well settled by courts.
• Cognizance does not involve any formal action of any kind, but occurs as
soon as a Magistrate applies his mind to the suspected commission of
offence for the purpose of proceeding to take subsequent steps towards
inquiry or trial (u/s. 200 or 202).
• It includes intention of initiating a judicial proceeding against an offender in
respect of an offence or taking steps to see whether there is a basis for
initiating judicial proceeding—Pitambar Buhan v. State, 1992 Cri LJ 645 Ori)
• Taking action of some other kind (say, issuing a search warrant) u/s.156(3)
for the purpose of investigation, cannot be said to taking cognizance—Tula
Ram v. Kishore Singh (1977) 4 SCC 459
• Magistrate’s order taking cognizance should reflect the application of his
mind—Arvindbhai Ravibhai Patel v. State of Gujarat, 1998 Cri LJ 463 (Guj).
• Court can take cognizance only once and after that it becomes functus
officio.—Ibrahim Khan v. State of Rajasthan, 1999 Cri LJ 2614.
• COGNIZANCE BY WHOM:
• Following class of Magistrate/court can take cognizance of offences:
• (a) Any Magistrate of first class—S. 190(1)
• (b) Any Magistrate of second class, if specially so empowered by the CJM–
may take cognizance of such offences as are within his competence to
inquire into or try—S. 190(2)
• (c) Except as otherwise expressly provided by the Code or by any other law,
a Sessions Court is not to take cognizance of any offence as a court of
original jurisdiction unless the case has been committed to it by a Magistrate
– Ss. 190, 193
• S. 199(2) specifically provides that a Sessions Court may directly take
cognizance of an offence of defamation of high dignitaries like President of
India, Governor of a State, if a complaint is made by Public Prosecutor within
six months from the date of alleged offence alleged to have been committed.
Sessions court can take cognizance without the case being committed to it.
• Territorial restrictions do not impair Magistrate’s power to take cognizance.
• COGNIZANCE WHEN TAKEN
• A Magistrate may take cognizance of any offence
• (a) upon receiving a complaint of facts which constitute such offence;
• (b) upon a police report of such facts;
• (c) upon information received from any person other than a police officer, or
upon his own knowledge that such offence has been committed (S. 190(1).
• A complaint means any allegation made orally or in writing to a Magistrate,
with a view to his taking action under the Code, that some person, whether
known or unknown, has committed an offence, but does not include a police
report –S. 2(d).
• A report made by a police officer in a case which discloses, after
investigation, the commission of non-cognizable offence shall be deemed to
be a complaint; and the police officer by whom such report is made shall be
the complainant—Explanation to S. 2(d).
• ‘Police report’ u/s. 2(r) means “a report by a police officer to Magistrate u/s.
173(2)” i.e. final report forwarded by police on completion of investigation.
Magistrate decides whether the report is complete for taking cognizance—
State of Maharashtra v. Shradchandra Vinayak, (1995) 2 1 SCC 42.
• Ordinarily, a private citizen has two options before him.
• He may give information to the police if the offence is cognizable or he may
go to the Magistrate and file a complaint, irrespective of whether the offence
is cognizable or non cognizable.
• In either case, it is for the Magistrate to take cognizance. But is he bound to
take cognizance when complaint is filed?
• In Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986, Supreme Court
observed: We cannot read the provisions of S. 190 to mean that once a
complaint is filed, Magistrate is bound to take cognizance of the facts stated
in the complaint. The word used in S. 190 is ‘may’. The reason: ‘a complaint
disclosing cognizable offence may well justify a Magistrate in sending the
complaint u/s. 156(3) to the police for investigation.
• A person who is convicted on the complaint of another may bring up a
complaint on the same incident against the other. Complainant may file
protest complaint when his earlier complaint has been dropped by police.
• Magistrate can take cognizance after keeping a long silence over the report.
• Further cognizance of an investigation can be taken even after the lapse of
several years of commission of offence—Shesh Nath Tiwari v. State of U.P.,
1999 Cri LJ 296 (All).
• TRANSFER OF CASES:
• U/s. 190(1)(c), Magistrate may take cognizance of an offence upon his own
knowledge or information. In such cases, S. 191 requires that the accused
must be informed before taking any evidence, that he is entitled to have the
case inquired or tried by another Magistrate.
• If the accused objects to the Magistrate taking cognizance of offence, case
will have to be transferred to such other Magistrate as directed by CJM—S.
191.
• Failure to tell the accused of his right vitiates the trial—Dulichand v. State,
AIR 1971 A & N 14. This illegality will not be cured by S. 465.
• U/s. 192, CJM or a duly authorized JMFC may transfer the case to another
competent Magistrate for administrative convenience.
• Transfer can be made only after taking cognizance of the offence.
• TIME LIMITATIONS: A Magistrate can take cognizance within the time limits
prescribed in Ss. 467-473.
• RESTRAINTS ON TAKING COGNIZANCE: Any person may set the criminal law
in motion by filing a complaint even if he is not personally affected.
• Ss. 195-199, however, impose limitation on the wide powers of a Magistrate
to take cognizance u/s. 190.
• Exceptions to the general rule in S. 190 are:
• (1) Prosecution for contempt of lawful authority of public servant: No court
shall take cognizance except on the complaint made by a public servant or
some other public servant to whom he is administratively subordinate—
• (a) of any offence punishable u/ss. 172-188 IPC or
• (b) of any abetment of, or attempt to commit, such offence, or
• (c) of any criminal conspiracy to commit such offence (S. 195(1)(a)
• Where complaint has been made by a public servant, his administrative
superior can order withdrawal of the complaint and send copy of such order
to court and on its receipt, no further proceedings shall be taken on the
complaint.
• Such complaint cannot be withdrawn if the trial in the court of first instance
has been concluded—195(2).
• Object of the provision is to save the accused from vexatious or baseless
prosecutions promoted by vindictive feelings on the part of private
complainants—Ashok v. State, 1987 Cri LJ 1750(MP).
• (2) Prosecution for offences against public justice and for offences relating to
documents given in evidence– No court, except on the complaint in writing
of that court, or some other court to which that court is subordinate, shall
take cognizance—
• (a) of any offence punishable under any of sections 193-196, 200, 205-211
and 228 when such offence is alleged to have been committed in, or in
relation to, any proceeding in any court, or
• (b) of any offence in S. 463 punishable u/s. 471, 475 or 476 IPC when such
offence is alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any court; or
• (c) of any criminal conspiracy to commit or attempt to commit, or the
abetment of, any offence specified in sub-clause (a) or sub clause (b).
• Offences here relate to giving or fabricating false evidence, false statement
made in any declaration, using as true a false declaration, false personation,
fraudulent removal or concealment etc. of property to prevent its seizure in
legal process, claiming property without right to prevent its seizure etc.
• For the purpose of S. 195(1)(b), ‘court’ means civil, revenue or criminal court
and includes a Tribunal constituted under Central, Provincial or State Act, if
declared by that Act to be a Court for purposes of S. 195- S.195(3).
• Court shall be deemed to be subordinate to that court to which appeals
ordinarily lie from appellate decrees or sentences of such former court & in
case no appeal lies from the civil court, to the principal civil court having
ordinary civil jurisdiction. Where appeals lie to more than one court,
appellate court with inferior jurisdiction shall be court to which such court
shall be subordinate.—S. 195(4)
• Purpose of S. 195(1)(b) is to bar private prosecutions where the course of
justice is sought to be perverted. It is for the court to uphold its dignity and
prestige.
• S. 340 lays down the procedure which should be adopted by the court when
any such offence appears to have been committed. Court may make a
complaint on its own or on the application of any person. In every case, court
must satisfy itself that an offence u/s. 195(1)(b) “appears to have been
committed” and it is expedient in the interest of justice that an enquiry
should be made.
• Person against whom such complaint has been made has a right of appeal
u/s. 341. S. 343 prescribes the procedure for taking cognizance by a
Magistrate on a complaint made to him u/s. 340 or s. 341. Magistrate can
proceed directly as if in a case instituted on police report—Godrej and Boyce
Mfg. Co. Ltd. v. Union of India, 1992 Cri LJ 3752(Bom).
• (3) Prosecution for offences against the State.—No Court shall take
cognizance of, except with the previous sanction of Central or State Govt.--
• (a) any offence punishable under Ch. VI or u/ss. 153A, 153B, 295A or S.
504 IPC; or
• (b) a criminal conspiracy to commit such offence; or
• (c) any such abetment, as is described in S. 108A IPC. (S. 196(1)
• The provisions referred relate to offences against the State (like waging war
against the Indian Govt., sedition etc.), promoting enmity between different
groups of people, imputations or assertions prejudicial to national
integration, deliberate acts outraging the religious feelings of any class,
statements conducive to public mischief, etc.
• Object is to prevent unauthorized persons from intruding in matters of State
by instituting prosecutions. Sanction to prosecute u/s. 196 is a condition
precedent for taking cognizance of any such offence—Baijnath v. State of
M.P., AIR 1966 SC 220.
• Before according sanction, Govt. concerned may order a preliminary inquiry
by a police officer not below Inspector—S. 196(3) r/w S. 155(3)
• (4) Prosecution for the offence of criminal conspiracy.—No court shall take
cognizance of offence of criminal conspiracy punishable u/s. 120B IPC, other
than a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or
upwards, unless the State Govt. or District Magistrate has consented in
writing to the initiation of the proceedings—S. 196(2).
• No such consent is necessary if the criminal conspiracy is one to which the
provisions of S. 195 apply—Proviso to S. 196(2).
• Before giving sanction, State Govt. or DM may order a preliminary
investigation by such police officer and in such manner as has been in (3)
above.
• (5) Prosecution of Judges and Public Servants.—S. 197(1) – No court shall
take cognizance of any offence alleged to have been committed by a person
who is or was a judge or Magistrate or a public servant, except with the
previous sanction of the appropriate State or Central Govt.
• To attract this rule, 197(1) requires that
• (a) the judge or Magistrate or the public servant is or was one not removable
from his office except by or with the sanction of appropriate Govt.
• (b) the alleged offence must have been committed by him while acting or
purporting to act in the discharge of his official duty;
• (c) the previous sanction must have been given by Central Govt. if, at the
time of commission of the alleged offence, accused person is or was
employed in connection with the affairs of the Union of India and similarly, if
accused person is or was employed in connection with the affairs of a State,
such previous sanction would have to be accorded by the State Govt.
• Central/State Govt. may determine the person by whom, the manner in which
and the offence or offences for which prosecution of such judge, Magistrate
or public servant is to be conducted and may specify the court before which
the trial is to be held – 197(4).
• Object is to enable public servants performing onerous and responsible
functions to act fearlessly by protecting from false, vexatious or mala fide
prosecutions.
• (6) Prosecution of members of Armed Forces: No Court shall take cognizance
of any offence alleged to have been committed by any member of the armed
forces of the Union while acting or purporting to act in the discharge of his
official duty, except with previous sanction of the Central Govt. – S.197(2).
• State Govt. may by notification direct that the above rule shall apply to such
class or category of members of the forces charged with the maintenance of
public order as may be specified—197(3)
• (7) Prosecution for offences against marriage.– No court shall take
cognizance of any offence punishable u/Ch. XX IPC except upon a complaint
by some person aggrieved by the offence—S. 198(1).
• The rule applies in respect of abetment of or attempt to commit any of the
offences mentioned therein—S. 198(7).
• Ch. XX IPC relates to six offences, viz., deceitful cohabitation by man, bigamy
with concealment of former marriage, fraudulently going through marriage
ceremony without lawful marriage, adultery, enticing etc. of a married
woman. Object of S. 198(1) is to prevent strangers from interfering in family
life when the aggrieved family members themselves are unwilling to agitate
against the alleged wrong.
• S. 198(2) states that in respect of offences of adultery (S. 497 IPC) and
enticing etc. committed by a married woman (S. 498 IPC), no person other
than the husband of the woman shall be deemed to be the aggrieved
person.
• In special cases, the following persons may make complaint in respect of any
such offence in the below-mentioned circumstances:
• (a) Where the aggrieved person is under the age of 18 years, an idiot or
lunatic, or is suffering from sickness or infirmity and is unable to make a
complaint, or is a woman who, according to the local customs and manners,
ought not to be compelled to appear in public, some other person may, with
leave of court, make a complaint on his or her behalf.—Proviso (a) to
S.198(1).
• When a complaint is sought to be made on behalf of a person under 18 or
on behalf of a lunatic by a person who has not been appointed or declared
by a competent authority to be guardian, or court is satisfied that there is a
guardian appointed or declared, court shall before granting leave, cause
notice to be given to such guardian and give him reasonable opportunity of
being heard—S. 198(3)
• (b) Where aggrieved person is husband and he is serving in armed forces of
Union who is precluded by his Commanding Officer from obtaining leave of
absence, some other person authorized as mentioned below make the
complaint—Proviso (b) to S. 198(1).
• The said authorization shall be (i) in writing (ii) signed or otherwise attested
by the husband, (iii) shall contain a statement to the effect that he has been
informed of the allegations upon which the complaint is founded, (iv) shall be
counter signed by his Commanding Officer, and (v) shall be accompanied by
a certificate signed by that officer that leave of absence of making complaint
in person cannot for the time being be granted to husband—S. 198(4).
• When such a certificate is issued, the certificate shall be presumed to be
genuine—S. 198(5)
• (c) Where person aggrieved by offence punishable u/s. 494 or 495 IPC is
wife, complaint may be made on her behalf by her father, mother, brother,
sister, son or daughter or by her father’s or mother’s brother or sister or with
leave of the court by any other person related to her by blood, marriage or
adoption—Proviso to S. 198(1)
• (d) Though court can take cognizance of offence punishable u/s. 498-A IPC
upon police report of facts, it is debarred from entertaining a complaint by
any other except the presser aggrieved (woman subjected to cruelty), her
parents, siblings or by father’s or mother’s brother or sister. Court can grant
leave to any other person related to her, to file complaint—S. 198-A.
• (8) Prosecution of husband for rape—No court shall take cognizance of an
offence u/s. 376 IPC, where such offence consists of sexual intercourse by a
man with his own wife, wife being under 15 years, if more than one year has
elapsed from date of offence—198(6).
• No court shall take cognizance of an offence u/s 376B (rape of husband of
victim woman when they are living separately), except upon a complaint by
wife against husband and unless the court is satisfied, prima facie of the
facts constituting the offence—S. 376B.
• (9) Prosecution for defamation. No court shall take cognizance of an offence
punishable u/Ch. XXI IPC except upon a complaint made by some person
aggrieved by the offence—S. 199(1). Offences in Ch. XXI relate to--
• Defamation, printing or engraving of defamatory matter, sale of printed
substance containing defamatory matter.
• Two exceptions to the above rule are:
• (a) Where aggrieved person is under 18 years or is an idiot or lunatic or
suffering from sickness or infirmity and is unable to make a complaint, or a
woman who, according to local customs and manners, ought not be
compelled to appear in public, some other person may, with leave of court,
make a complaint on his or her behalf—Proviso to S. 198(1)
• (b) Any such offence mentioned in S. 199(1) is alleged to have been
committed against a person who, at the time of such commission, is the
President, Vice President, Governor of State, Administrator of UT or Minister
of Union or of a State or Union Territory or any other public servant
employed in connection with the affairs of Union or State, in respect of his
conduct in the discharge of his public functions, Sessions Court may take
cognizance of such offence, without the accused being committed to it, upon
a complaint in writing made by Public Prosecutor-S. 199(2).
• Such a complaint can be made only with the previous sanction of State
Government/Central Govt.—S. 194.
• Power conferred on Public Prosecutor shall not affect the right of person
against whom offence is alleged to have been committed to make a
complaint in respect of that complaint before a Magistrate, or the power of
Magistrate to take cognizance of the offence upon such complaint-S. 199(6)
• Primary object of the above provision is for govt. to step in to maintain
confidence in purity of administration when high dignitaries and other public
servants are wrongly defamed.
• SCRUTINY OF (Private) COMPLAINT
• (1) Pre-cognizance state: Magistrate on receiving the complaint, may or may
not take cognizance of the offence complained of.
• He may apply his mind and send it to police for investigation—156(3). Here
he has not taken cognizance nor applied his mind for purpose of proceeding
to take subsequent steps u/s. 200, 202, 204 etc.—Charan Singh v. State of
Haryana, 1994 Cri LJ 1003 (P & H)
• If complaint is made to a Magistrate who is not competent to take
cognizance, he shall
• (a) if the complaint is in writing, return it for presentation to the proper court
with an endorsement to that effect; or
• (b) if the complaint is not in writing, direct the complainant to the proper
court—S. 201
• (2) Examination of the complainant--Magistrate applies his mind to the
offence complained of with a view to take subsequent steps.
• First step is to examine the complainant on oath u/s.200.
• Object is to ascertain whether there is a prima facie case against accused
and to prevent the issue of process on a false or vexatious complaint or a
complaint intended only to harass such a person—Nirmaljit Singh Hoon v.
State of W.B., (1973) 3 SCC 753.
• Accused does not have any role at this stage—Lakshmi Kishore Tonsekar v.
State of Maharashtra, 1993 Cri LJ 2772 (Bom), M. Thulasidas v. K.
Govindaraju, 1995 Cri LJ 1660 (Mad).
• There is an exception in S. 200. When the complaint is in writing, Magistrate
need not examine the complainant and witness—
• (a) if a public servant acting or purporting to act in the discharge of his
official duties, or a court has made the complaint. Object is to obviate
inconvenience which might be caused to a judge or public servant making a
written complaint u/s. 195.
• (b) if Magistrate makes over the case for enquiry or trial to another
Magistrate u/s. 192.
• (3) Enquiry or investigation for further scrutiny of complaint:
• Magistrate authorized to take cognizance, or to whom the complaint is made
over u/s. 192, may, if he thinks fit, postpone issue of process against
accused, and enquire into the case himself or direct investigation to be made
by a police officer or such other person as he thinks fit for deciding whether
there is sufficient ground for proceeding.
• No such direction for investigation shall be made--
• A) Where it appears to the Magistrate that the offence is triable exclusively
by Sessions Court; or
• B) where the complaint has been made by a person other than a court, the
complainant and witnesses present (if any) have not been examined on oath
u/s. 200—S. 202(1).
• If such investigation is to be made by a person other than a police officer, he
shall have all powers conferred by the Code on SHO except the power to
arrest without warrant-S. 202(3).
• Object of S. 202 is to enable the Magistrate to form an opinion as to
whether process should be issued or not. Magistrate has to see whether
there is evidence in support of allegation in the complaint and not whether
evidence is sufficient to warrant a conviction, for the purpose of “deciding
whether or not there is sufficient ground for proceeding”.
• The discretion has to be exercised judicially—Mohd. Abdul Khadir Choudhary
v. State of Assam, 1989 Cri LJ 1888 (Gau).
• If Magistrate is not satisfied with the result of investigation, he may
subsequently make an enquiry himself or direct fresh investigation.
• If the Magistrate decides to inquire into the case himself, he may, if he thinks
fit, take evidence of witnesses on oath (except in a case triable by Sessions
Court).
• Magistrate should bear in mind that the case that would be tried by a
Sessions Court may not be bound by the opinion formed by him on the basis
of available material—Moideen Kutty Haji v. Kunhikoya, 1987 KLJ 492
(FB)(Ker)
• Magistrate is to call upon complainant to produce all his witnesses and to
examine them on oath—S. 202(2).
• Accused is not given any role in the proceedings u/s. 202, as it might
prejudice the accused if the complaint is not dismissed—Nina Nargis Devaud
v. Farida G. Devacecna, 1991 Cri LJ 2694 (Kant).
• (4) Dismissal of complaint.– If, after considering the statements on oath of
complainant and witnesses and results of enquiry or investigation u/s. 202,
Magistrate is of opinion that there is no sufficient ground for proceeding, he
shall dismiss the complaint, briefly recording the reasons—S. 203
• It should be possible for accused at this stage to satisfy the Magistrate that
there was no case at all against him and he can even recall the order issuing
process u/s. 204 and dismiss the complaint u/s. 203.
• Dismissal of complaint should not be ordered merely because there is no
sufficient ground for conviction of accused.
• It can be ordered only when there is no ground for proceeding.
• Process cannot be refused if evidence makes out a prima facie case—
Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430.
• A second complaint on same facts could be entertained only in exceptional
circumstances—previous order was passed on an incomplete record or on a
misunderstanding of nature of complaint or it was manifestly absurd or
unjust, or where new facts with reasonable diligence have been brought on
record which in previous proceedings could not have been adduced—Hira
Lal v. State of UP (2009) 11 SCC 89
• 5. ISSUE OF PROCESS: If Magistrate, taking cognizance considers that there
is sufficient ground for proceeding, he shall issue process against accused in
the following manner:
• 1. If the case appears to be a summons case, he shall issue summons for
attendance of the accused; or
• 2. if it appears to be a warrant case, he may issue a warrant, or if he thinks
fit, a summons for causing the accused to be brought or to appear at a
certain time before the Magistrate (or if he has no jurisdiction) some other
Magistrate having jurisdiction.
• No summons or warrant shall be issued against accused u/s. 204(1) unless
and until a list of prosecution witnesses has been filed—204(2).
• This is to enable the accused to know the prosecution witnesses and to
prepare himself for their cross-examination.
• Summons or warrant issued upon a complaint made in writing, shall be
accompanied by a copy of such complaint—S. 204(3).
• Where process fee or other fee is payable under any law, no process shall be
issued until the fees are paid. If such fees are not paid within reasonable
time, Magistrate may dismiss the complaint—S. 204(4).
• Process issued cannot be recalled by the Magistrate—Adalat Prasad v.
Rooplal Jindal—(2004) 7 SCC 338.
• Only course available to aggrieved person is by way of a petition u/s.482—
Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324
• Magistrate may, under certain circumstances, dispense with personal
attendance of accused and permit him to appear by his pleader—S. 205(1).
• But Magistrate inquiring into or trying the case may in his discretion, at any
stage of proceedings, direct personal attendance of accused and if necessary
enforce such attendance—S. 205(2).
• The power to dispense attendance u/s. 205(1) is limited to the first issue of
process and cannot be exercised at any later stage. Personal attendance at
later stage can be dispensed with u/s. 317.
• SPECIAL SUMMIONS IN CASES OF PETTY OFFENCES:
• S. 206 provides an abridged procedure in disposal of petty cases in which
accused may plead guilty.
• For this purpose, Magistrate is empowered to issue special summons:
• 1. S. 206 is applicable only to such cases where offence alleged is
punishable only with fine up to Rs. 1000—S. 206(1).
• State Govt. may empower Magistrates to exercise the power in relation to
any offence compoundable u/s. 320 or offence punishable with
imprisonment up to 3 months or fine or with both—S. 206(3)
• 2. The abridged procedure applies only in such cases where Magistrate is of
opinion that the case may be summarily disposed of u/s. 260—S. 206(2).
• Procedure also applies to cases covered by notification issued by State and if
the Magistrate is opinion that having regard to facts and circumstances of
the case, imposition of fine only would meet ends of justice—S. 206(3).
• 3. Abridged procedure shall not be applicable in a case where the
Magistrate, for reasons to be recorded in writing, decides not to dispose of
the case summarily—S. 206(1)
• 4. Not applicable also in cases where offence is punishable under Motor
Vehicles Act or under any other law which provides for convicting the
accused person in absence of plea of guilty—S. 206(2)
• 5. If accused chooses to plead guilty without appearing before Magistrate, he
is to transmit, within the specified time, the said plea in writing and the
amount of fine mentioned in the special summons—S. 206(1).
• 6. If accused chooses to appear by pleader and to plead guilty through such
pleader, he can do so by giving such authority in writing and by paying fine
through such pleader.
• 7. Amount of fine to be specified in special summons shall not be more than
Rs.1000.