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1 INTRODUCTION TO PROCEDURAL LAWS

Procedural law is a fundamental aspect of the legal system that governs the
processes and methods by which courts operate and enforce rights. It
establishes the rules for legal proceedings, ensuring that justice is administered
fairly and efficiently. Here’s an introduction to procedural laws, their significance,
and their relationship with substantive laws.

Definition of Procedural Law

Procedural law refers to the body of law that outlines the procedures for
enforcing rights and obligations through the legal system. It encompasses rules
regarding how legal cases are initiated, conducted, and resolved in court. This
includes stipulations on jurisdiction, pleadings, evidence, appeals, and the
execution of judgments.

Key Characteristics of Procedural Law

1. Framework for Legal Proceedings: Procedural law provides the
framework for how courts operate, detailing the steps involved in legal
processes, from filing a lawsuit to the final judgment.
2. Ensures Due Process: One of the primary purposes of procedural law is
to ensure that individuals receive fair treatment in legal proceedings. This
 includes the right to be informed of charges, the right to a fair hearing,
and the right to present evidence.
3. Distinction from Substantive Law: Procedural law is distinct from
substantive law, which defines the rights and duties of individuals and
entities. While substantive law outlines what constitutes a legal right or
obligation (e.g., criminal offenses, contract terms), procedural law dictates
how those rights can be enforced in court.

Types of Procedural Law

Procedural law can be categorized into various types based on the nature of the
legal proceedings:

1. Criminal Procedure: Governs the process for prosecuting criminal

offenses. It includes rules about arrests, searches, trials, and appeals. The
Code of Criminal Procedure (CrPC) in India is a key example.
2. Civil Procedure: Regulates the process for civil lawsuits, including rules
for filing claims, serving notices, and conducting trials. The Civil Procedure
Code (CPC) in India outlines these procedures.
3. Administrative Procedure: Governs the procedures followed by
administrative agencies when making rules, conducting hearings, and
enforcing regulations.
4. Evidence Procedure: Details the rules regarding the admissibility of
evidence in court, including how evidence is presented and challenged
during trials.

Importance of Procedural Law

1. Facilitates Justice: Procedural law ensures that the legal system
operates smoothly, allowing for the efficient resolution of disputes and the
enforcement of rights.
2. Protects Rights: By establishing clear rules for legal proceedings,
procedural law protects individual rights and prevents arbitrary actions by
the state or other parties.
3. Promotes Fairness: Procedural law promotes fairness in the legal
process by providing all parties with an opportunity to present their case
and respond to the evidence against them.
4. Enhances Legal Certainty: Clear procedural rules provide predictability
in legal proceedings, allowing individuals and entities to understand their
rights and obligations within the legal system.

Conclusion
Procedural law is a vital component of the legal framework that governs how
justice is administered. It establishes the rules and processes that ensure fair
treatment in legal proceedings, protecting the rights of individuals while
facilitating the enforcement of substantive laws. Understanding procedural law is
essential for navigating the legal system and ensuring that justice is served
effectively.
2 INTRODUCTION TO BNSS WITH ITS DISTINCTION FROM CR.P.C
PPT- Downloads
New Criminal Laws 2023 (mygov.in)
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is a newly enacted
legislation designed to replace the Code of Criminal Procedure (CrPC), 1973 in
India. This legislative shift aims to modernize and streamline criminal
procedures, enhancing the efficiency of the justice system while addressing
contemporary challenges such as prolonged trial durations and low conviction
rates.
Key Distinctions Between BNSS and CrPC
Terminology and Structure
1. Terminology Changes: The BNSS replaces outdated and insensitive terms
found in the CrPC. For instance, references to "lunatic" have been changed to
"person with mental illness," aligning with modern sensibilities and legal
standards.

2. Structural Adjustments: The BNSS introduces new sections and modifies

existing ones, with a total of 531 sections compared to the CrPC's structure.
Notably, it omits certain provisions related to metropolitan areas and judicial
posts like Assistant Sessions Judges, aiming for uniformity in the judicial
framework.

Procedural Enhancements
1. Simplification of Procedures: The BNSS seeks to simplify criminal
procedures, including the introduction of electronic modes for trials and
investigations. This includes mandatory videography of searches and electronic
registration of First Information Reports (FIRs).

2. Timelines and Efficiency: The BNSS establishes specific timelines for

various stages of the criminal process, such as mandating that judgments be
delivered within 30 days after arguments conclude, with limited extensions
allowed.

3. Forensic and Technological Integration: Enhanced investigatory powers

are granted, including mandatory forensic investigations for serious offenses
and the use of technology in trials, which were less emphasized under the CrPC.

Rights and Protections

1. Focus on Citizen Protection: One of the primary goals of the BNSS is to

protect citizens from procedural exploitation, which was a concern under the
CrPC. This includes provisions that aim to ensure fair treatment of both victims
and accused individuals.

2. Changes in Bail and Custody Regulations: The BNSS modifies the

definitions and conditions surrounding bail, emphasizing a more structured
approach to custody that includes provisions for electronic monitoring and the
use of handcuffs in specific cases.

Critiques and Controversies

While the BNSS introduces several progressive changes, it has faced criticism
regarding certain provisions that some argue may replicate or worsen issues
present in the CrPC. For example, the new legislation includes sections that
reference "seditious matters," which has raised concerns about potential misuse.
Conclusion

The BNSS represents a significant overhaul of India's criminal procedural

framework, aiming to modernize the legal system while addressing the rights of
citizens and the efficiency of justice delivery. Its effective implementation will
be crucial in determining whether it meets its objectives of reform and
protection within the criminal justice system.

3. AN OVERVIEW OF CRIMINAL JUSTICE PROCESS

CRIMINAL JUSTICE SYSTEM

The system that deals with agencies of government that are responsible for
enforcing the law in the country, maintaining peace and harmony and treating
criminal conduct is known as the criminal justice system. The aim of the
criminal justice system is to ensure that every person who suffers an injury or
loss at the hand of others is allowed to present his case and seek justice.

It is consist of 3 main parts:-

1.Legislative = Prepare laws
2.Adjudication = Courts (decide upon the offence)
3. Corrections = jail, prison, probation & parole.

Justice:- The process or result of using laws to fairly judge & punish crime &
criminals.

In the CJS, these agencies operate together both under the rule of law & as the
principal means of monitoring the rule of law within society. For the purposes
of the CJS includes, in particular, the investigation of offences & the
treatment of offenders.

The criminal law consists of the substantive law contained in the Indian Penal
Code (IPC) as well as the special and local laws enacted by the central and state
legislatures from time to time and the procedural law laid down mainly in the
Code of Criminal Procedure, 1973 (Cr.P.C) and the Indian Evidence Act, 1872.
These three are major acts in CJS.
THE PROCESS OF CRIMINAL JUSTICE- Refer CW

Step 1: Registration of the First Information Report (FIR)

The process of criminal justice is initiated with the registration of the First
Information Report. The FIR is a written document prepared by the police when
they receive information about the commission of a cognizable offence.

Step 2: The police officer proceeds to the scene of crime and investigates the
facts of the case. Police investigation mainly includes:
1.Examination of the scene of crime
2.Examination of witnesses and suspects
3.Recording of statements
4. Conducting searches
5.Seizing property
6. Collecting fingerprint, footprint and other scientific evidence
7.Consulting records and making entries in the prescribed records, like case
diary, daily diary, station diary etc.
8. Making arrests and detentions
9. Interrogation of the accused

Step-3: After completion of investigation, the officer in charge of the police

station sends a report to the area magistrate. The report sent by the investigating
officer is in the form of a charge sheet, if there is sufficient evidence to
prosecute the accused. If sufficient evidence is not available, such a report is
called the final report.

Step-4: On receiving the charge sheet, the court takes cognizance and initiates
the trial of the case.

Step- 5: The charges are framed. The procedure requires the prosecution to
prove the charges against the accused beyond a shadow of doubt. The accused is
given a full opportunity to defend himself.

Step-6: If the trial ends in conviction, the court may Award any of the following
punishments:
1. Fine
2. Forfeiture of property
3.Simple imprisonment
4. Rigorous imprisonment
5.Imprisonment for life
6.Death Sentence

 In cognizable offences, the police have a direct responsibility to

undertake investigation and the power to arrest a person without warrant.
 Non-cognizable offences cannot be investigated by the police on their
own, unless directed by the courts having jurisdiction to do so.
 The First Schedule of Cr.P.C lists all offences in the IPC and mentions
whether they are cognizable (255 of the offences) or non-cognizable (122
of the offences).

4. CONCEPT AND TYPES OF CRIMINAL JUSTICE SYSTEM

Introduction
The system that deals with agencies of government that are responsible for
enforcing the law in the country, maintaining peace and harmony and treating
criminal conduct is known as the criminal justice system. The aim of the
criminal justice system is to ensure that every person who suffers an injury or
loss at the hand of others is allowed to present his case and seek justice.

It is consist of 3 main parts:-

1.Legislative = Prepare laws
2.Adjudication = Courts (decide upon the offence)
3. Corrections = jail, prison, probation & parole.

Objectives of a criminal justice system

The various objectives of the criminal justice system are:

 To punish the wrongdoers.

 Prevent the further occurrence of crime in society.

 Regulate the behaviour and conduct of people, especially criminals.

 Provide relief to the victim.

 Treatment of offenders and their rehabilitation.

 To create deterrence in the minds of people at large not to indulge in

any criminal activity.

Need and evolution of criminal justice systems

According to Hobbes, man is selfish by nature and can go to any extent for
pleasure. As said by Bentham, a person avoids pain and demands to seek
pleasure. He is usually moved by his instincts and, in earlier times, there were
no regulations and limits to control his conduct. With the increasing population
and communities, his interests collided with others’ and led to a situation of
conflict. Thus, in order to regulate the conduct of a man, a system was needed
that could monitor his actions. The development of the criminal justice system
is the same as the development of man.

The first stage was when there was no control over his actions and he acted as
per his needs and demands. If needed, he could hurt anyone and fulfil his
wishes. Then came the second stage, where the territory expanded and the
concept of ‘state’ emerged. At this stage, a ruler ruled the kingdom and other
people acted on his behalf. This stage, however, could not handle the conflict of
interests, and so the king gave strict punishments based on the theory of eye for
an eye and body for a body. This stage was full of revenge and hatred. When
the king still could not regulate the actions of man and there was chaos in
society, a need for a proper system was felt. With the advancement of time and
development in society, the monarchy was replaced by the aristocracy, which
was further replaced by democracy, and the government was thought to have a
system to control the rate of crime in each state; hence, the criminal justice
system emerged.

Types of criminal justice systems

There are two major types of criminal justice systems in the world. These are:

 Adversarial system

 Inquisitorial system

1. Adversarial system
This system is followed in common law countries that were once colonies of a
particular country. In this system, there is a prosecution advocate and a defence
advocate who argue before the court, and the case is decided on the basis of
principles of evidence law and procedural laws. The judge decides the case on
the basis of arguments between the two counsels and evidence shown in court.
This system presumes the accused to be innocent until proven guilty beyond
a reasonable doubt.

India follows this system because it was once a colony of the British empire and
hence called a common law country. The prosecutor represents the state, as it is
presumed that a crime has been committed against the state at large, and so, it is
the obligation of the state to provide justice. In this system, both parties are
given rights to a fair trial and hearing, and so justice is delayed.

MADAM PPT ZAHEERA SHEIK CASE

2. Inquisitorial system

This system is followed in civil law countries. In this system, the judge can
himself investigate the matter and decide the case on the basis of investigation
and inquiry. The counsel from each side is present, but unlike in the adversarial
system, there is no cross-examination of witnesses. The decision and its
accuracy depend on the prudence and skills of the judge.

The trial procedure is much faster in this system, and it is not costly. It is less
formal, and the determination of justice does not depend on the advocate but on
the ability of each particular judge.
Comprisons between the adversarial and inquisitorial system
Basis of
Adversarial system Inquisitorial system
comparison

The aim is to extract the truth by

The aim is to extract the truth by
way of arguments between the two
Aim way of investigation and inquiry
counsels from each side on the basis
by the judge.
of evidence and witnesses.

These are binding and important in a Precedents do not have much

Precedents
case. importance in this system.

It is the duty of the police to

Investigation in this system is
investigate the matter and find
done by the judge himself, or he
Investigation evidence related to it while the judge
may delegate this duty to
delivers justice on the basis of the
government officials.
facts and evidence of each case.

There are 2 parties i.e., state and

accused. The state is represented by
There is no cross-examination
a public prosecutor and the accused
Trial and re-examination; witnesses
by a defence advocate. During the
can only be interrogated.
trial, witnesses are examined, cross-
examined and then re-examined.

The law related to evidence is more

stringent and there is a clear
The law related to evidence is
distinction between admissible and
Evidence liberal and there is no rule of
inadmissible evidence. Hearsay
hearsay.
evidence is an exception to the rules
of evidence and is inadmissible.

The victim himself files the case

A victim cannot be said to be a party and is the party to it, unlike the
Role of victim to a case as the state takes adversarial system where the
cognizance of the case. state takes cognizance of the
case.
Overview of the criminal justice system in India

The aim of the criminal justice system is to punish the criminal and prevent
further crimes in future so that people could live peacefully. Criminal law in
India consists of the Indian Penal Code, 1860 which defines the various
offences along with their punishment and the Criminal Procedure Code,
1973 which gives the procedure of the trial. The evidence is further governed by
the Evidence Act, 1872.

The adversarial form of the criminal justice system presumes the accused as
innocent until proven guilty beyond a reasonable doubt. It gives the accused a
fair chance to present his case to meet the ends of natural justice. The principles
of Hinduism and other religions in India value human life and adhere to the
principle of providing an equal opportunity to every person to present his side
of the story. Thus, the Indian criminal justice system follows an adversarial
system and depends on the maxim “let 100 culprits be acquitted and freed, but
one innocent person should never be convicted”.

With the advancement of time and technology, offences were codified and the
trial procedure was laid down. This made the administration of justice easy and
reliable. The present criminal justice system in India was established by the
British East India Company during the pre-independence era. However, after
independence, it has seen many changes and modifications. Various committees
were set up from time to time to recommend changes in the system and suggest
measures to control the rate of crime in the country.

Components of criminal justice

There are four pillars, or components, of the criminal justice system that are
explained in detail below. These are:
  Police
 Prison
 Prosecution
 Courts

5 THE FUNCTIONARIES UNDER THE BNSS

Functionary means any person who holds an office or a trust or performs a

particular function (an official) is known as functionary. In other words, the
term is used to define a person who is employed in a public office and is
entrusted to perform a certain function. There are five functionaries under the
BNSS, which are, the police, prosecutors, defense counsel, courts and prison
authorities and correctional service authorities. These functionaries are
important for the proper functioning of the Sanhitha. The code clearly defines
the powers and functions of each of the functionary mentioned in it.

The functionaries referred to under this Sanhitha are as follows:

Police

Prosecutors

Courts

Defense Counsel
 Prison/ correction authorities

Police

The Sanhitha doesn't specifically provide for the establishment of the Police
force as such, although it acknowledges the existence of the authority and
confers certain powers and responsibilities on them.

The law provides that, "the power of the police is a tool to stop and identify
illegal acts" they are thus an essential authority under the criminal justice
system.

Organization:

The organization and the establishment of the police are dealt with under The
Police Act, 1861. It provides that "the police force is an instrument for the
detection of crime and its prevention." Thus, this legislation in addition to
BNSS governs the functioning of the force.

Powers of police

Power to arrest:

Power to search and investigate:

Power to compelling attendance and examination:

Duties and Functions:

To register FIR

Preliminary investigation:
 Producing the arrested person before the court:

Assist prosecution:

The police is further required to provide any kind of assistance as may be

necessary to ensure the administration of justice.

2. Prosecutor

Prosecutors are described as "administrators of justice." A crime is regarded as

a wrong not just against the immediate victim affected, but also the society as a
whole as it offends and threatens the society in general. Thus, a prosecutor plays
a significant role in the Criminal Justice system. A prosecutor while
representing the state in a trial is primarily required to ensure that justice is
administered, and not just to secure conviction or acquittal of the accused.

Organisation:

A prosecutor is appointed to conduct prosecution and appeal in the court.

Additional and Assistant public prosecutors (Section 19) may also be
appointed by the State government and they shall function subject to the
directions of Public Prosecutor. The Sanhitha also includes provisions for
Special Public Prosecutors (SPP) under Section 18(8) that are to be appointed
by the Central government. However, if the appointment for SPP is specifically
requested by the victim, then the same shall be appointed by the state but the
legal fees shall be paid by the victim.

The Court in Phool Singh v. State of Rajasthan held that “ if the victim requests
the State to appoint a Special Public Prosecutor in a case, then the State shall
appoint the same and such Special Public Prosecutor shall be paid by the victim.
The directorate of prosecution (Section 20) is the main authority which
exercises control over all the officers.

3.Courts

Judiciary is the 3rd essential organ of the state. Their role in administering
justice, is of paramount importance. The Supreme court of judicature is the
highest appellate body, among the hierarchy of courts. Following the supreme
court are 25 High Courts situated in different states, which also exercise
control over the District Courts.

Organisation:

Chapter II of BNSS elucidates the provisions with respect to establishing

courts, and section 6 specifically highlights the different categories of criminal
courts.

Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India can be understood through the
following chart
4.Defence Counsel

One of the cardinal rules of natural justice embodies that both parties must be
given an equal opportunity of being heard. This rule is to be complied with at
the first instance while recording the statement of the accused as mandated
under Section 351.

Once the trial commences, the accused has a right to be defended with the aid of
a counsel, especially since the accused, in most cases would be layman and thus
would not be very well versed with the technicalities of law. The Anglo- Saxon
system which is adopted by India, provides that, in all criminal cases the state
shall be represented by the public prosecutor whereas the defendant shall be
represented by the defence counsel.

The accused/defendant has a right to appoint a defence counsel at his own cost
by virtue of section 340 of the Sanhitha. This right conferred upon the accused
under this section is indispensable as it ensures a fair trial. In addition to section
340, Article 22 of the constitution also stipulates that the accused can hire a
defence attorney of his choice.

A conjoint reading of Article 39a and section 341 of the Sanhitha provides that,
in case the accused lacks the financial means to hire counsel, the court will
appoint a pleader at the state's expense. In a plethora of decisions, the court has
repeatedly insisted that the accused must be given free legal representation by
appointing a defence attorney. Further, in the case of State of Madhya
Pradesh v. Shobharam, it was observed that any law that attempts to deny the
accused of his right of defence, is violative of the provisions of the constitution.

The Legal Services Authorities Act, 1987, also makes provisions for extending
free legal assistance to the poor.
5. Prison Authorities and Correctional Facilities

The BNSS does not specifically include provisions pertaining to prison

authorities; however, they play a significant role in ensuring that proper care
and custody is provided for the prisoners. The state government is empowered
to appoint these officials.

They are entrusted with the responsibility of looking after the inmates as well as
ensuring their safety and security.

The court does not create but presupposes the existence of prison authorities and
the Prison. As per Section 187 Magistrates and judges are empowered by the
code to order the detention of under-trial prisoners in jail during the pendency of
the proceedings. The courts have the power under the Code to impose
imprisonment sentences on convicted persons and to execute such sentences
send them to prison authorities.

However, the Code does not provide specific provisions for working, creation
and control of such machinery. The Prisons Act 1894, The Probation of
Offenders Act 1958 and The Prisoners Act 1900 deals with such matters.

Conclusion:

The fate of the accused and the victim are dependent on the proper
administration and functioning of the various functionaries. Thus, each of
them must exercise their powers and perform their duties, in accordance with
the law to uphold the Principles of Natural Justice.

6. POWERS OF CRIMINAL COURTS

Chapter 2nd Section 6 to 29 of the Sanhitha deals with the Constitution of
Criminal Courts and their powers although section 6 of Code of Criminal
Procedure deals with the classification of criminal Courts. According to section
6 there are 4 kinds of Criminal Courts i.e. Court of Session, Court of judicial
Magistrate, Court of Metropolitan Magistrate and Executive Magistrate.

Classes and Constitution of Criminal Courts

According to Section 6 of the Code and Section 6 of BNSS, there are four
classes of courts other than the High Court and the Special Courts in every
State. According to BNSS, the four classes of Courts are as follows:

 Session Court

 Judicial Magistrate of the first class

 Judicial Magistrate of the second class; and

 Executive Magistrate

In BNSS, the concept of metropolitan magistrate and metropolitan area is

removed. In the Code, the metropolitan magistrate is provided with the powers
same as of the Judicial magistrate of first class. But according to BNSS, there
will be no metropolitan magistrates and metropolitan areas.

Constitution of Session Court

According to Section 8 of BNSS, the Session Court shall only consist of the
Session Judge, who is the presiding officer of the court and the Assistant
Session Judges. The High Court of the particular State shall appoint the
presiding officer and may also appoint Additional Session Judges.
Also, the Session Judge may also pass an order for the distribution of the duties
to all the nominated additional session judges.

Constitution of Court of Judicial Magistrates

According to Section 9 of BNSS, the Court of Judicial Magistrate shall include

Court of Judicial Magistrate first class and Court of Judicial Magistrate second
class.

Also, the State Government may after consultation with the High Court may
establish any special court of judicial magistrate of first class or of second class.
The presiding officer of these court shall also be appointed by the High Court.

According to Section 10 of BNSS, every Judicial Magistrate of first class shall

be appointed as the Chief Judicial Magistrate or Additional Chief Judicial
Magistrate or the Sub-divisional Magistrate by the High Court.

Also, every Chief Judicial Magistrate shall be subordinate to the Session Judge
and every Judicial Magistrate shall be subordinate to the Chief Judicial
Magistrate.

Constitution of Court of Executive Magistrate

According to Section 14 of BNSS, the State Government shall appoint one of

the Executive Magistrate as a District Magistrate or Additional District
Magistrate whose power will be same under BNSS.

The State Government may also appoint one of the Executive Magistrate as a
Sub-divisional placed in charge of Sub-division or Special Executive Magistrate
for any particular area or for any particular classes of cases.
According to Section 17 of BNSS, all the Executive Magistrates are subordinate
to the District Magistrate and all the Executive Magistrate working in any Sub-
division shall be subordinate to the Sub-divisional Magistrate.

Powers of Criminal Courts

1. According to Section 22 of BNSS, the High Court may pass any

sentence authorised by the law. The Session Judge and the
Additional Session Judge may pass any sentence authorised by the
law but in case of sentence of death by any of such Judges, it has to
be confirmed by the High Court of the particular State.
2. Section 23 of BNSS, the Chief Judicial Magistrate may pass any
sentence except the death punishment, life imprisonment or the
imprisonment for the term exceeding seven years.

The Judicial Magistrate of first class may pass a sentence for a term not
exceeding three years and/or the fine not exceeding fifty thousand rupees.

Also, the Judicial Magistrate of second class may pass a sentence for the term
not exceeding one year and/or for the fine not exceeding ten thousand rupees.

3. According to Section 24 of BNSS, the court of Judicial Magistrate

may pass sentence for imprisonment in default of fine but not in
excess of the powers given by BNSS respectively.

4. Also, Section 25 of BNSS deals with the cases of conviction for

the several offences. The said Section states that the court may pass
different sentences in a single trial for different offences committed
by the same person subject to section 9 of the Bhartiya Nyaya
Sanhita, 2023. And the Court shall clarify that the sentences shall
 run concurrently or Consecutively. But here it should also be
noticed that no court shall send the offender for trial before the
higher Court only for the reason the aggregate of the several
punishments is excessing the punishment which it is competent to
inflict on conviction of the single offence.

But the conditions are that no person shall be punished for more than fourteen
years and the total aggregate of the punishments of the total offences shall not
exceed twice the amount of the punishment which the court is competent to
inflict for the single offence.

Conclusion

The introduction of Bhartiya Nagarik Suraksha Sanhita, 2023 has brought

various changes in the classes, constitution and powers of the Criminal Courts
as given under the Code of Criminal Procedure, 1973. The new law has
excluded the metropolitan courts and metropolitan areas and also the
designation of Assistant Session Judge. The Indian Legislature has focused to
made their own law and to set aside the old laws which were made by the
Britishers.

7. PRINCIPLES OF FAIR TRIAL – EPG Patashala material in downloads

The right to a fair trial is a norm of international human rights law and also
adopted by many countries in their procedural law. Countries like U.S.A.,
Canada, U.K., and India have adopted this norm and it is enshrined in their
Constitution.
‘Fair trial’ is an oft-quoted phrase, the meaning and scope of which is hard to
fathom. It has been used to describe prescriptions of both substantive and
procedural law in a society that has its edifice on rule of law. Fair trial has been
considered as a facet of “due process”. The concepts of 'due process' and the
concept of a just, fair and reasonable law have been read by the Supreme Court
into the guarantees under Articles 14 and 21 of our Constitution. A post
Constitutional law also has to obey the injunction of Article 13, which is clear
and explicit in 13(2) where it is ordained that the State shall not make any law
which takes away or abridges the rights conferred by Part III and any law made
in contravention of this clause shall, to the extent of the contravention, be void.

The right to a fair trial is a fundamental safeguard to ensure that individuals are

protected from unlawful or arbitrary deprivation of their human rights and

freedoms, most importantly of the right to liberty and security of person.

FAIR TRIAL

In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors The
Supreme Court of India observed “each one has an inbuilt right to be dealt with
fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused
as it is to the victim and to society. Fair trial obviously would mean a trial
before an impartial judge, a fair prosecutor and an atmosphere of judicial calm.
Fair trial means a trial in which bias or prejudice for or against the accused, the
witness or the cause which is being tried, is eliminated.”

Principles of Fair Trial

1. Adversary trial system:

The system adopted by the Criminal Procedure Code, 1973 is the adversary
system based on the accusatorial method. In adversarial system responsibility
for the production of evidence is placed on the prosecution with the judge acting
a neutral referee. This system of criminal trial assumes that the state, on one
hand, by using its investigative agencies and government counsels will
prosecute the wrongdoer who, on the other hand, will also take recourse of best
counsels to challenge and counter the evidences of the prosecution.

Supreme Court has observed “if a Criminal Court is to be an effective

instrument in dispensing justice, the presiding judge must cease to be a
spectator and a mere recording machine. He must become a participant in the
trial by evincing intelligent active interest.”

In Himanshu Singh Sabharwa v. State of M.P. and Ors., the apex court
observed that if fair trial envisaged under the Code is not imparted to the parties
and court has reasons to believe that prosecuting agency or prosecutor is not
acting in the requisite manner the court can exercise its power under section 311
of the Code or under section 165 of the Indian Evidence Act, 1872 to call in for
the material witness and procure the relevant documents so as to sub serve the
cause of justice.

2. Presumption of innocence:

Every criminal trial begins with the presumption of innocence in favour of the

accused. The burden of proving the guilt of the accused is upon the prosecution

and unless it relieves itself of that burden, the courts cannot record a finding of
the guilt of the accused. This presumption is seen to flow from the Latin legal
principle ei incumbit probatio qui dicit, non qui negat, that is, the burden of
proof rests on who asserts, not on who denies.
In Zahira Habibullah Sheikh (5) v. State of Gujarat (2006), the Supreme Court
reiterated that the trial must seek truth and protect the innocent, with fairness to
both the accused and the victim.

In State of U.P. v. Naresh and Ors. the Supreme Court observed “every
accused is presumed to be innocent unless his guilt is proved. The presumption
of innocence is a human right subject to the statutory exceptions. The said
principle forms the basis of criminal jurisprudence in India.”

3. Independent, impartial and competent judges:

The primary principle is that no man shall be judge in his own cause nemo
judex in cause sua. Section 525 of the Sanhitha prohibits trial of a case by a
judge or magistrate in which he is a party or otherwise personally interested.
This disqualification can be removed by obtaining the permission of the
appellate court.

 Case Law: In National Human Rights Commission v. State of Gujarat

(2009), the Supreme Court emphasized the need for impartiality in the
judiciary and prosecution, ensuring that trials are conducted without bias,
especially in sensitive cases(Fair Trial).

In this regard section 6 of the Code is relevant which separates courts of

Executive Magistrates from the courts of Judicial Magistrates. Article 50 of the
Indian Constitution also imposes similar duty on the state to take steps to
separate the judiciary from the executive.

4. Autrefois Acquit and Autrefois Convict:

According to this doctrine, if a person is tried and acquitted or convicted of an

offence he cannot be tried again for the same offence or on the same facts for
any other offence. This doctrine has been substantially incorporated in the
article 20(2) of the Constitution and is also embodied in section 337 of the
Sanhitha.

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao the Supreme

Court observed that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the

Constitution. While, Article 20(2) of the Constitution only states that ‘no one
can be prosecuted and punished for the same offence more than once’, Section

300(1) of Cr.P.C. states that no one can be tried and convicted for the same
offence or even for a different offence but on the same facts. In the present case,
although the offences are different but the facts are the same. Hence, Section
300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC
was barred by Section 300(1) of Cr.P.C. The impugned judgment of the High
Court was set aside.

5. Right to be Heard and Present

The accused has the right to be present at their trial and to be heard. This
includes the right to defend oneself or through counsel, cross-examine
witnesses, and call witnesses in their defense.

 Case Law: In Manu Sharma v. State (NCT of Delhi) (2010), the

Supreme Court held that a fair trial involves an impartial process, and all
evidence must be assessed, ensuring no bias(Fair Trial).

6. Speedy Trial
A fair trial must also be speedy, ensuring that justice is not delayed
unnecessarily. A delay in the trial can lead to a miscarriage of justice and is
considered a violation of the accused’s right under Article 21 of the
Constitution.

 Case Law: In Abdul Rehman Antulay v. R.S. Nayak (1992), the

Supreme Court held that a speedy trial is implicit in the concept of fair
trial under Article 21, and the court must balance various factors when
deciding whether a delay has violated this right(Fair Trial).

7. Right Against Self-Incrimination

An accused person has the right not to testify against themselves or provide
evidence that could incriminate them. This is protected under Article 20(3) of
the Constitution.

 Case Law: In Selvi v. State of Karnataka (2010), the Supreme Court

held that the right against self-incrimination is part of a fair trial, and any
method used to extract confessions must not violate personal liberties
under Article 21(Fair Trial).

8. Equality of Arms

This principle ensures that both the prosecution and defense have equal
opportunities to present their case. The defense must have access to all evidence
the prosecution holds, including material that may exonerate the accused.

 Case Law: In Mohd. Sukur Ali v. State of Assam (2011), the Supreme
Court ruled that denying the accused the opportunity for an effective
defense counsel violates Article 14 and the right to a fair trial(Fair Trial).

9.Right to Legal Representation

The right to counsel is fundamental to a fair trial. If the accused cannot afford
legal representation, they must be provided with one at the state’s expense.
  Case Law: In Mohd. Hussain v. State (2012), the Supreme Court held
that meaningful legal representation is essential for a fair trial. The
provision of amicus curiae ensures that the accused has adequate
representation if they cannot afford a lawyer(Fair Trial)(Fair Trial).

10. Right to Cross-Examine Witnesses

The accused has the right to challenge the prosecution’s case by cross-
examining witnesses and presenting evidence in their defense. This ensures that
the trial is balanced and all sides are heard.

 Case Law: In Talab Haji Hussain v. Madhukar Purshottam Mondkar

(1958), the court emphasized the need for a fair trial and allowed the
defense to cross-examine key witnesses(Fair Trial).

Conclusion

The principles of a fair trial, as outlined in the BNSS and supported by

landmark case laws, ensure that justice is served equitably, protecting the rights
of the accused, victims, and society. The judiciary's commitment to these
principles is vital for upholding the rule of law in India.

8 MAINTENANCE OF WIVES, CHILDREN AND PARENTS.

Introduction

The word ‘Maintenance’ is not defined in the BNSS, 2023 Chapter X of the
Sanhitha deals with provisions for maintenance of wives, children and parents.

‘Maintenance’ in legal meaning is money (alimony) that someone must pay

regularly to a former wife, husband or partner, especially when they have had
children together. It is the duty of every person to maintain his wife, children
and aged parents, who are not able to live on their own. The concept of
maintenance for wives, children, and parents is primarily governed by specific
provisions in various laws, including the BNSS, the Hindu Adoption and
Maintenance Act, 1956, and the Maintenance and Welfare of Parents and
Senior Citizens Act, 2007. Below is an overview of how the CrPC facilitates
the maintenance of these dependents and the relevant provisions that come into
play.

1. Legal Framework for Maintenance

The BNSS does not directly provide for maintenance but establishes procedural
mechanisms through which maintenance claims can be adjudicated. The
relevant laws that specifically address maintenance include:

 Section 144 of the BNSS: This section provides a summary procedure

for the maintenance of wives, children, and parents. It allows individuals
to file an application for maintenance in a magistrate's court.

2. Provisions of Section 144 of the BNSS

a. Maintenance for Wives

 A wife who is unable to maintain herself can claim maintenance from her
husband. The husband is legally obligated to provide for her, especially if
 she is unable to support herself due to reasons such as illness or lack of
employment.

b. Maintenance for Children

 Children, whether legitimate or illegitimate, can claim maintenance from

their parents. The obligation to maintain children is a shared
responsibility, and parents must provide for their children's basic needs,
including food, education, and healthcare.

c. Maintenance for Parents

 Parents who are unable to maintain themselves can seek maintenance

from their children. This provision recognizes the duty of children to
support their parents, especially in their old age or when they are unable
to earn.

3. Filing for Maintenance

 Application: An application for maintenance can be filed in the

magistrate's court under Section 144. The applicant must provide details
regarding their inability to maintain themselves and the financial capacity
of the respondent (the person from whom maintenance is sought).
 Summons: Upon receiving the application, the magistrate issues a
summons to the respondent, requiring them to appear in court and
respond to the maintenance claim.

4. Procedure and Adjudication

 Hearing: The magistrate conducts a hearing where both parties can

present their evidence and arguments. The court assesses the financial
status of the parties and the needs of the applicant.
  Order for Maintenance: If the court finds the application valid, it issues
an order for maintenance, specifying the amount to be paid. This order is
enforceable, and failure to comply can lead to legal consequences.

5. Enforcement of Maintenance Orders- Section 147

 The BNSS provides mechanisms for the enforcement of maintenance

orders. If the respondent fails to pay the ordered maintenance, the court
can take action, which may include:
 Attachment of property.
 Imprisonment for non-compliance, under certain circumstances.

6. Related Provisions

While Section 144 of the BNSS provides a framework for maintenance, other
laws complement these provisions:

 Maintenance and Welfare of Parents and Senior Citizens Act, 2007:

This act specifically addresses the maintenance rights of parents and
senior citizens, allowing them to seek maintenance from their children
through a simplified process.
 Hindu Adoption and Maintenance Act, 1956: This act governs the
maintenance rights of wives, children, and parents in Hindu families,
providing additional legal grounds for maintenance claims.

7. Judicial Interpretation

Indian courts have consistently upheld the rights of dependents to seek

maintenance, emphasizing the moral and legal obligations of spouses and
children. Courts have interpreted Section 125 broadly to ensure that
maintenance is granted to those in genuine need, reinforcing the principle that
maintenance is a fundamental right.
8. Conclusion

The maintenance of wives, children, and parents is an essential aspect of family

law in India, supported by the provisions of the CrPC and other relevant
legislation. The CrPC provides a procedural framework for seeking
maintenance, ensuring that dependents can access financial support when
needed. The legal provisions aim to protect vulnerable individuals and uphold
their rights, reflecting the societal obligation to care for family members in
need.

1. Vijay Kumar v. State of Haryana (2010)

 Summary: In this case, the Supreme Court held that the right to
maintenance is a fundamental right under Article 21 of the
Constitution. The court emphasized that the provisions for
maintenance under Section 125 of the CrPC are meant to provide
immediate relief to those in need, ensuring that the dependents can
sustain themselves while the legal proceedings are ongoing.
2. K. R. Srikantan v. State of Karnataka (2015)
 Summary: The Karnataka High Court ruled that a wife is entitled to
maintenance even if she is living separately from her husband due
to his misconduct. The court reiterated that the husband has a legal
obligation to maintain his wife, regardless of the circumstances
leading to their separation.

FIR
Sec. 154 of the CRPC deals with the First Information Report (FIR) i.e. first
information of a cognizable crime to the police. FIR is not defined in the Code,
but it means information relating to the commission of a cognizable offence
given to the police first in point of time. The reason for documenting an FIR is
to set criminal law into motion and not to express all the small details therein.

In the case of T.T.Antony vs State of Kerala & Ors, it was held that
“ Information given under sub-section (1) of Section 154 of Cr.P.C., is
commonly known as the First Information Report (FIR), though this term is not
used in the Code….And as its nickname suggests, it is the earliest and the first
information of a cognizable offence recorded by an officer in charge of a police
station”.

Importance of FIR

The principal object of the F.I.R is to set the criminal law in motion and to
obtain information about the alleged criminal activity so as to be able to take
suitable steps to trace and bring to book the guilty. Hence, Sec. 154 has a
three-fold object, which is:

1. To inform the Magistrate and the District S. P., who are responsible for the
peace and safety of the district, of the offences reported at the police station;

2. To make known to the judicial officers before whom the case is ultimately
tried what the facts were given out immediately after the occurrence and the
materials on the basis of which the investigation commenced,

3. To safeguard the accused against subsequent variations or additions.

In order to qualify as an FIR under Section 154, the following essentials

need to be fulfilled:

1. It is an information relating to the commission of a cognizable offence;

2. It is given by the informant either orally or in writing;

3. If given orally, it should be reduced to writing by the officer in charge of a

police station or under his direction and if given in writing or reduced to writing
shall be signed by the person giving it;

4. The substance of the information shall be entered in a book in such form as

the State Government may prescribe on this behalf. This book is called 'General
Diary'.

5. In order for the information to be qualified as an FIR, there must be

something in the nature of the complaint or accusation regarding the
commission of a cognizable offence.
An FIR consists of three key components:

 It should be given to the head of the police station in writing or orally,

and

 it must relate to the commission of a cognizable offence.

 The informant must write it down and sign it, and the essential aspects
should be noted in a general diary.

Concept of Zero FIR

In the case of the State of Andhra Pradesh v. Punati Ramulu, it was held that
refusal to record an FIR on the ground that the place of crime doesn't fall within
the territorial jurisdiction of the police station amounts to dereliction of duty.
Information about cognizable offences would have to be recorded and
forwarded to the police station having jurisdiction, and such FIR is called Zero
F.IR. The police officers who fail to comply with the registration of Zero FIR
may invite prosecution under Section 166A of IPC and also departmental
action.

What is E-FIR?

E-FIR stands for electronic First Information Report, and it can be filed in cases
of cognizable offences such as rape, murder, dowry deaths, and so on. Its major
goal is to safeguard the identities of victims who may be unable to submit a
police report at a nearby station due to societal pressures, unwillingness to face
society, and other factors. An E-FIR may be filed in a variety of ways
depending on the state.

Effect of Delay

FIR relies on spontaneity, deliberation, and consultation. The prompt FIR goes a
long way in establishing that the prosecution story was an authentic & truthful
one, and it also reflects the part played by the accused, the nature of the
incident, and the name of witnesses. However, a mere delay in the registration
of FIR cannot be a ground for throwing away the prosecution case. Long Aid's
unexplainable delay may create doubt or raise suspicion as to how the incident
happened.

In the case of Ramdas v State of Maharashtra, it was held that it depends on

the facts and circumstances of each case. But the fact that the report was lodged
belatedly is a relevant factor of which the court must take notice. Further, in the
case of Vidyadharan v State of Kerala, it was observed that delay in lodging
of FIR in rape cases is quite natural in traditional bound society to avoid
embracement and hence should not be suspected. Only unexplained delay can
be ground to arouse suspicion.

Evidentiary Value of FIR

Although FIR is an important document, it sets criminal law in motion. It is not

a substantive piece of evidence, i.e. evidence of the facts recorded in it. A First
Information Report can be used to corroborate the information under Section
157 of the Indian Evidence Act or to contradict under Section 145 of the
Evidence Act if the informant is called a witness at the time of trial.

Although FIR may be merely hearsay and need not necessarily be given by a
person who has first-hand knowledge of the facts of the case, it provides the
fundamentals on the basis of which the entire investigation and prosecution will
be carried out. The evidentiary value of FIR is considered to be greater than any
other statement recorded by the police during the course of an investigation. If
the FIR is given by the accused himself, then it can be either:
I. Confessional FIR: If the FIR is confessional in nature, it cannot be proved
against the accused-informant as it would be hit by Section 25 of the Indian
Evidence Act.

II. Non-confessional FIR: If the FIR is non-confessional in nature, it can be

admissible in evidence uncle Section 21 of the Indian Evidence Act or showing
his conduct under Section 8 of the Evidence Act.

In the case of Aghno Nagesia v. State of Bihar, it was held that in view of
Section 145 of Evidence Act First Information Report can be used for cross-
examination of the informant and for contradicting him. Considering Sections
157 and 145 of the Evidence Act, it can be deduced that the FIR cannot be used
for the purpose of corroborating or contradicting any witness other than the one
registering the FIR.

POWERS OF EXECUTIVE MAGISTRATE

What is meant by the term Executive Magistrate?

Each state appoints executive magistrates (Tehsildars) in every district and in every
metropolitan area. In each administrative district there are:

 A District Magistrate (DM)

 2 or more Additional District Magistrates (ADM)
 4 or more Sub-divisional District Magistrates (SDM) and
 At least 10 Executive Magistrates

Other than the ADM all the magistrates are under the control of DM.

Powers of an Executive Magistrate

An Executive Magistrate is an officer of the Executive branch. He or she has powers under
both Indian Penal Code and Criminal Procedure Code. An Executive Magistrate requires a
person arrested on the orders of a court outside the local jurisdiction to be produced before
him and he has the power to set the bail amount and impose conditions on the individual to
avoid police custody as per the terms of the warrant. In addition to this an Executive
magistrate has certain other powers to maintain law and order as discussed below.

Powers of Executive Magistrate under the Code

of Criminal Procedure (CrPC)
Executive Magistrates play a significant role in the criminal justice system in
India, primarily responsible for maintaining public order and implementing
preventive measures. Their powers are defined under various provisions of the
CrPC, which empower them to take necessary actions to ensure the rule of law
and public safety.

1. Appointment and Jurisdiction

 Appointment: Executive Magistrates are appointed by the state
government and can be designated as District Magistrates or Sub-
Divisional Magistrates. They operate at different levels within the
administrative framework.
 Jurisdiction: Executive Magistrates have jurisdiction over specific
geographical areas, and their powers vary based on their designation.

2. Key Powers of Executive Magistrates

a. Preventive Action (Section 107-110)
 Section 107: Allows Executive Magistrates to take preventive action
against individuals who are likely to commit acts that disturb public peace.
They can issue orders requiring such individuals to show cause why they
should not be ordered to execute a bond to maintain peace.
 Section 108: Empowers Executive Magistrates to act against individuals
who are likely to commit acts that may harm national integration or incite
communal disharmony.
 Section 109: Addresses individuals who are concealing their presence
with the intent to commit a cognizable offense.

b. Unlawful Assemblies (Sections 129-132)

 Section 129: Authorizes Executive Magistrates to disperse unlawful
assemblies. If a gathering of five or more people is deemed unlawful, the
magistrate can order the assembly to disperse to maintain public order.
 Section 130: Allows Executive Magistrates to call for police assistance to
disperse an unlawful assembly if necessary.
 Section 131: Permits the use of military assistance to disperse an
unlawful assembly if the situation escalates beyond the control of the
police.
c. Public Nuisance (Sections 133-140)
 Section 133: Executive Magistrates can issue conditional orders to
remove public nuisances. If the nuisance is not removed, the magistrate
can take further action.
 Section 134: Deals with the service of such orders, ensuring that
individuals are notified of the conditions imposed by the magistrate.
 Section 136: Outlines the consequences of failing to comply with a
magistrate's order, which may result in penalties under Section 188 of the
Indian Penal Code (IPC).

d. Disputes Related to Immovable Property (Sections

145-148)
 Section 145: Executive Magistrates can intervene in disputes related to
immovable property that may lead to a breach of peace. They can issue
orders to maintain the status quo until the dispute is resolved.
 Section 146: Allows for the attachment of property involved in a dispute
to prevent further escalation.

3. Administrative Powers
 Executive Magistrates also have administrative powers, including the
ability to grant or revoke licenses, supervise local governance, and ensure
compliance with various laws and regulations.

4. Judicial Powers
 While primarily administrative, Executive Magistrates can exercise limited
judicial powers in certain situations, particularly when dealing with
preventive measures and maintaining public order.

5. Case Laws and Judicial Interpretation

 Courts have recognized the importance of the powers of Executive
Magistrates in maintaining public order. For instance, in the case of K.K.
Verma v. State of U.P., the court upheld the authority of Executive
Magistrates to take preventive action to avert potential disturbances.

6. Conclusion
The powers of Executive Magistrates under the CrPC are essential for
maintaining public order and ensuring the smooth functioning of the legal
system. By empowering them to take preventive action, disperse unlawful
assemblies, and address public nuisances, the CrPC enables Executive
Magistrates to play a crucial role in safeguarding the rights of citizens and
upholding the rule of law. Their authority reflects the balance between
individual rights and the need for public safety in a democratic society.

9 INVESTIGATION AGENCIES

Investigation Agencies in India

Investigation agencies in India are responsible for conducting inquiries,
gathering evidence, and adopting other measures to uncover the truth behind
crimes and offenses. These agencies play a crucial role in the detection,
investigation, and prosecution of offenders at the national, state, and special unit
levels.
National Level Agencies
1. Central Bureau of Investigation (CBI): The primary police
investigation agency in India, responsible for investigating crimes related
to corruption, economic offenses, and special crimes.
2. National Investigation Agency (NIA): A specialized counter-terrorism
law enforcement agency empowered to investigate terror-related crimes
across states without special permission from the states.
State Level Agencies
 1. Crime Investigation Departments (CID): Prominent state-level
agencies that investigate crimes committed or having an effect within
their respective jurisdictions.
Special Units
1. Narcotics Control Bureau (NCB): Responsible for combating drug
trafficking and abuse in India.
2. National Crime Records Bureau (NCRB): Provides information
technology services to the Indian Police and maintains records of crime
data to aid investigations.
Objectives of Investigation Agencies
 Detection and investigation of crimes
 Prevention of crimes
 Disrupting criminal networks
 Protecting society and public safety
 Enforcing laws
 Combating national security threats, including terrorism
 Ensuring accountability and promoting transparency

Key Roles and Responsibilities of Investigation Agencies

Investigation and Evidence Gathering
 Conduct thorough investtigations to gather evidence, including witness
statements, forensic analysis, and surveillance.
 Utilize modern technology and forensic science to enhance the accuracy
and efficiency of investigations.
Collaboration and Coordination
 Work in tandem with other law enforcement agencies, both at the national
and state levels, to ensure a comprehensive approach to crime
investigation.
 Engage with international agencies for cross-border investigations and
intelligence sharing.
Public Safety and Crime Prevention
  Implement strategies to prevent crime through community engagement,
awareness programs, and proactive policing.
 Monitor and analyze crime trends to anticipate and mitigate potential
threats.
Legal Proceedings
 Prepare and present evidence in court to support prosecutions.
 Ensure that investigations are conducted in accordance with the law,
safeguarding the rights of individuals involved.

Conclusion
Investigation agencies in India, such as the CBI and NIA, are essential
components of the law enforcement mechanism. They work to ensure justice,
maintain public safety, and safeguard the nation's security by conducting
thorough investigations and aiding in the prosecution of offenders.

10 INVESTIGATION PROCESS

Investigation Process under the Code of Criminal Procedure (CrPC)

The investigation process under the CrPC consists of several key stages, each
with specific procedures and powers vested in the investigating agencies. Here's
a comprehensive overview of the investigation process:
1. FIR Registration (Section 154)
 The investigation process begins with the registration of a First
Information Report (FIR) upon receiving information about a cognizable
offense.
 The police are bound to register an FIR if the information discloses the
commission of a cognizable offense.
2. Preliminary Investigation (Section 157)
 The officer in charge of the police station must proceed to the crime scene
and investigate the facts and circumstances of the case.
  If necessary, measures are taken for the discovery and arrest of the
offender.
3. Powers of Investigation (Section 156)
 The officer in charge of the police station has the power to investigate a
cognizable offense without the order of a magistrate.
 For non-cognizable offenses, the police require a warrant or permission
from the magistrate to investigate.
4. Collection of Evidence
 The investigating officer has the power to require the attendance of any
person acquainted with the facts and circumstances of the case (Section
160).
 Evidence is collected through witness statements, forensic analysis,
search and seizure, and other investigative techniques.
5. Arrest and Interrogation of Suspects
 The police have the power to arrest suspects based on reasonable
suspicion (Section 41).
 Interrogation of suspects is conducted to gather further evidence and
information.
6. Submission of Police Report (Section 173)
 After completing the investigation, the police submit a report (charge
sheet) to the magistrate, detailing the findings and evidence collected.
 If the evidence is insufficient, the accused may be released under Section
169.
7. Further Investigation (Section 173(8))
 Even after a charge sheet is filed, the police can conduct further
investigations if new evidence emerges or if directed by the court.
8. Magistrate's Powers
 The magistrate has the power to direct further investigation at any stage
before the commencement of the trial (Section 156(3)).
 The magistrate can also order a preliminary inquiry into the case (Section
159).
Conclusion
The investigation process under the CrPC is a crucial stage in the criminal
justice system, ensuring that crimes are thoroughly investigated, evidence is
collected, and suspects are apprehended. The investigating agencies, primarily
the police, are vested with significant powers to conduct investigations
effectively while safeguarding the rights of individuals involved.

11 ARREST
The concept of arrest under the BNSS is fundamental to the Indian criminal
justice system. It encompasses the legal framework governing how individuals
can be apprehended by law enforcement agencies. The BNSS provides detailed
guidelines on the powers of arrest, the procedures to be followed, and the rights
of arrested individuals. Here’s an elaboration on the concept of arrest, including
relevant case laws.

Concept of Arrest under the CrPC

1. Definition and Types of Arrest

Arrest is the act of detaining a person by legal authority. Under the BNSS, there
are two primary types of arrest:

 Arrest Without Warrant (Section 35): Police officers can arrest

individuals without a warrant in specific circumstances, particularly for
cognizable offenses.

 Arrest With Warrant (Section 72): A police officer must obtain a

warrant from a magistrate to arrest individuals accused of non-cognizable
offenses or when conditions for warrantless arrest are not met.

2. Grounds for Arrest Without Warrant (Section 35(1)

Police officers are empowered to arrest without a warrant under various
conditions, including:

 When a cognizable offense is committed in the presence of the police

officer.

 If there is reasonable suspicion that a cognizable offense has been

committed, punishable with imprisonment of less than seven years,
provided specific conditions are satisfied (e.g., preventing further
offenses, ensuring proper investigation).

 If the person is a proclaimed offender or found in possession of stolen

property.

3. Procedure for Arrest

a. Informing the Arrested Person (Section 47)

 Police officers must inform the arrested person of the grounds for arrest
and their right to bail, if applicable.

b. Arrest by Private Persons (Section 40)

 A private individual may arrest someone committing a non-bailable

offense in their presence and must take the arrested person to a police
officer or station without delay.

c. Arrest by Magistrates (Section 41)

 Magistrates can arrest individuals for offenses committed in their

presence or direct others to do so.

4. Post-Arrest Procedures

 The arrested individual must be produced before a magistrate within 24

hours of arrest, excluding travel time, to prevent unlawful detention.
(Article 22(2))
5. Rights of the Arrested Person

The BNSS ensures several rights for arrested individuals, including:

 The right to be informed of the grounds of arrest. (Article 22(1))

 The right to consult and be defended by a legal practitioner of their

choice.

 The right to remain silent during interrogation.

6. Case Laws on Arrest

Several landmark cases have shaped the understanding and application of arrest
under the CrPC:

 Joginder Kumar v. State of U.P. (1994): The Supreme Court

emphasized that an arrest should not be made merely because the police
have the power to do so. The police must exhibit clear justification for
every arrest, ensuring that it is based on reasonable satisfaction and a
minimum level of investigation into the genuineness of the complaint.

 Medha Patkar v. State of Madhya Pradesh (2007): This case

highlighted the violation of Article 21 of the Constitution when peaceful
protestors were unlawfully arrested. The court ruled that police must
respect individual rights and cannot arrest individuals without just cause.

7. Conclusion

The arrest process under the CrPC is designed to balance the need for effective
law enforcement with the protection of individual rights. The provisions of the
CrPC, along with judicial interpretations, ensure that arrests are conducted
lawfully, transparently, and justly. The case laws cited demonstrate the
judiciary's role in safeguarding the rights of individuals while maintaining the
integrity of the criminal justice system.

12 SEARCH AND SEIZURE

Search and seizure are crucial investigative tools used by law enforcement
agencies to gather evidence in criminal cases. The provisions governing search
and seizure are primarily outlined in the BNSS which establishes the legal
framework and safeguards to ensure that these actions are conducted lawfully.

1. Legal Provisions for Search and Seizure

a. Search Without Warrant (Section 185)

 Police officers have the authority to conduct a search without a warrant if

they believe that immediate action is necessary to prevent the destruction
of evidence or to apprehend an offender.

 The officer must record the reasons for conducting a search without a
warrant and ensure that the exigency of the situation justifies this action.

b. Search With Warrant (Section 96)

 A magistrate may issue a search warrant under certain conditions, such as

when there is reason to believe that evidence related to an offense is
present at a specific location.

 The magistrate must apply their mind to the circumstances before issuing
a warrant, ensuring that there is sufficient justification for the search.

c. Specific Provisions for Search (Sections 97-108)

  Section 97: Allows magistrates to issue warrants to search for stolen
property or forged documents.

 Section 100: Empowers magistrates to issue warrants to search for

persons wrongfully confined.

 Section 103: Outlines the procedure for conducting searches, requiring

police officers to prepare a search list detailing the items seized and to
provide a copy to the person whose premises were searched.

2. Procedure for Conducting Searches

 Preparation: Before conducting a search, the officer must ensure that

they have the necessary authority, either through a warrant or under
Section 185.

 Execution: During the search, police officers must follow legal protocols,
including:

 Not altering the scene of the crime unnecessarily.

 Ensuring that the search is conducted in the presence of witnesses.

 Preparing a detailed search list that includes items seized and

providing a copy to the individual whose premises are searched.

 Seizure of Items: Officers are authorized to seize items that are relevant
to the investigation. This includes documents, weapons, or any other
material evidence that may assist in the prosecution of the case.

3. Rights of Individuals During Search and Seizure

The BNSS provides certain rights to individuals during the search process:
  Individuals must be informed of the grounds for the search.

 A copy of the search list must be provided to the person whose premises
are searched.

 Searches must be conducted during reasonable hours, and unnecessary

force should not be used.

4. Case Laws Pertaining to Search and Seizure

Several landmark cases have shaped the legal landscape regarding search and
seizure under the CrPC:

 State of West Bengal v. S. N. Basak (1963): The Supreme Court held

that a search conducted without a warrant is valid only if it is justified by
the circumstances of the case. The court emphasized the need for police
to act within the bounds of the law.

 K. S. Puttaswamy v. Union of India (2017): This case recognized the

right to privacy as a fundamental right under Article 21 of the
Constitution. The judgment highlighted the need for stringent safeguards
during searches and seizures to protect individual privacy.

 Mohd. Ahmed v. State of Maharashtra (2007): The court ruled that a

search conducted without following the prescribed procedure under the
CrPC is illegal. The importance of adhering to legal protocols was
underscored to prevent arbitrary actions by law enforcement.

5. Conclusion

The provisions for search and seizure under the CrPC are designed to facilitate
effective law enforcement while protecting individual rights. By establishing
clear guidelines and legal safeguards, the CrPC aims to ensure that searches are
conducted fairly, transparently, and in accordance with the law. The case laws
discussed further illustrate the judiciary's role in upholding these principles and
ensuring that law enforcement agencies operate within the legal framework.

CO 2

13 PROCESSES TO COMPEL APPEARANCE AND FOR

INFORMATION TO POLICE

Processes to Compel Appearance and for Information to Police under the CrPC

The BNSS in India outlines specific processes to compel the appearance of

individuals in court and to gather information necessary for investigations.
These processes are designed to ensure that justice is served while respecting
individual rights.

1. Compelling Appearance

a. Summons (Section 63)

 A summons is a formal order issued by the court requiring an individual

to appear before it at a specified time and place.

 The summons must be in writing, signed by the presiding officer of the

court, and bear the court's seal.

 The individual summoned is expected to appear voluntarily, and this is

considered the least coercive method of ensuring attendance.

b. Service of Summons (Section 64)

 Summons must be served personally to the individual. If personal service

is not possible, it can be served to an adult male member of the family or
affixed at the individual's residence.

 The serving officer must obtain acknowledgment from the person served,
ensuring that they are aware of the summons.

c. Warrant of Arrest (Section 72)

 If an individual fails to respond to a summons, the court may issue a

warrant of arrest.

 A warrant of arrest empowers the police to arrest the individual and bring
them before the court.

 The warrant can be bailable or non-bailable, depending on the nature of

the offense.

d. Proclamation (Section 84)

  If a person absconds after a warrant has been issued, the court may issue
a proclamation, requiring the individual to appear within a specified time
frame.

 If the individual fails to appear, their property may be attached to compel

their appearance.

2. Information to Police

a. Summoning Witnesses (Section 179)

 Police officers have the authority to summon individuals who are

acquainted with the facts of a case for questioning.

 This provision allows the police to gather information from witnesses to

aid in their investigation.

b. Examination of Witnesses (Section 180)

 Police can record statements of witnesses during the investigation phase.

 These statements can be used as evidence in court, provided they are

recorded in accordance with legal procedures.

c. Statements made to Police and Use thereof (Section 181)

 Statements made to the police during the investigation cannot be used for
the purpose of contradicting the witness in court, except in certain
circumstances.

 This provision protects the rights of individuals while ensuring that police
investigations are thorough.

3. Case Laws Pertaining to Compelling Appearance and Information

Gathering
  State of U.P. v. Rajesh Gautam (2003): The Supreme Court held that the
issuance of summons is a mandatory requirement before a warrant of
arrest is issued, reinforcing the principle of natural justice.

 K. K. Verma v. State of U.P. (1954): The court ruled that the failure to
serve a summons properly could lead to the quashing of proceedings,
highlighting the necessity of adhering to procedural safeguards.

4. Conclusion

The processes to compel appearance and gather information under the CrPC are
essential components of the criminal justice system in India. By providing clear
guidelines for issuing summons, warrants, and gathering witness statements, the
CrPC aims to ensure that justice is served while protecting the rights of
individuals. The case laws discussed further illustrate the judiciary's
commitment to upholding these principles and ensuring that law enforcement
operates within the legal framework.

14 POWER TO INVESTIGATE

The power to investigate under the Code of Criminal Procedure, 1973 (CrPC) in
India is primarily outlined in Section 156, which details the authority of police
officers and magistrates in conducting investigations into cognizable offenses.
This section is critical for understanding the procedural framework for criminal
investigations in India.
Police Powers Under Section 156

Authority to Investigate
 Section 156(1) empowers any officer in charge of a police station to
investigate a cognizable offense without needing a prior order from a
Magistrate. This allows for immediate action upon receiving information
about a crime, facilitating timely investigations.

 Section 156(2) states that the investigation conducted by the police

cannot be questioned at any stage, reinforcing the autonomy of police in
their investigative capacity.

Relevant Case Laws

 In Har Prasad v. State of UP (2006), the Supreme Court emphasized
that if an application under Section 156(3) discloses a cognizable offense,
the police have a duty to register an FIR and investigate, as crime
detection is primarily the responsibility of law enforcement, not the courts.

 The Lalita Kumari v. Government of UP (2014) case established that if

the information does not disclose a cognizable offense but indicates the
necessity for an inquiry, a preliminary inquiry may be conducted to
ascertain whether a cognizable offense exists.

Magistrate Powers Under Section 156(3)

Directing Investigations
 Section 156(3) allows a Magistrate to order an investigation into a
cognizable offense if the police fail to act appropriately. This provision
ensures judicial oversight and accountability in the investigative process.

 The Magistrate can direct a preliminary inquiry before ordering the

registration of an FIR, particularly in cases where the initial complaint does
not clearly indicate a cognizable offense. This was upheld in Khalid Khan
and Anr v. State of UP and Anr, where the Allahabad High Court
affirmed that a Magistrate has discretion to direct such inquiries.
Relevant Case Laws
 In Priyanka Srivastava v. State of UP (2015), the Supreme Court
mandated that applications under Section 156(3) should be supported by
an affidavit. This requirement aims to ensure that the complaints
presented to the Magistrate are genuine and substantiated.

 The C. Kumaravel v. Director General of Police (2019) case

reinforced that if the police refuse to register an FIR, the appropriate
recourse is to approach the Magistrate under Section 156(3), rather than
invoking the High Court's inherent powers under Section 482 of the CrPC.

Conclusion
The framework established by Section 156 of the CrPC delineates the powers of
both police and magistrates in investigating cognizable offenses. Police officers
have broad authority to initiate investigations without prior approval, while
magistrates can intervene to ensure that investigations are conducted properly
when necessary. Judicial precedents have clarified and expanded upon these
powers, emphasizing the importance of timely and effective investigations in the
criminal justice system.

15. SUMMONS FOR APPEARANCE

Summons for Appearance Under CrPC

Summons is a legal document issued by a court directing a person to appear

before a judge or magistrate. The power to issue summons is provided under
various sections of the Code of Criminal Procedure (CrPC), primarily Sections
63, 227, 228

Essentials of a Valid Summons

According to Section 63 BNSS, every summons issued by a court must:

  Be in writing and in duplicate

 Be signed by the presiding officer of the court or an authorized officer

 Bear the seal of the court

The summons should also clearly specify:

 The name of the issuing court

 The name and address of the person summoned

 The offense charged

 The date and time for appearance

Procedure for Issuing Summons

1. Decision by Magistrate:

 Section 227 BNSS empowers a magistrate to issue a summons in a

summons case or warrant in a warrant case, or summons even in a
warrant case if deemed appropriate.

2. Service of Summons:

 Section 64 BNSS states that summons shall be served by a police

officer or court officer, preferably by personal delivery to the
person summoned.

 If personal service is not possible, the summons may be left with

an adult male family member or affixed to a conspicuous part of
the residence.

Exemption from Personal Appearance

1. Discretion of Magistrate:
  Section 228(1) BNSS allows a magistrate to dispense with the
personal attendance of the accused and permit appearance through
a pleader.

 This discretion can be exercised even without a request from the

accused if the magistrate sees sufficient reason to do so.

2. Conditions for Exemption:

 Courts generally impose conditions like not disputing identity,

ensuring counsel's presence, and making the accused available
when needed.

 The accused may also need to submit an undertaking and execute a

bond with sureties.

Consequences of Non-Compliance

1. Warrant of Arrest:

 Section 72 BNSS empowers a court to issue a warrant of arrest if a

person fails to appear after being served with a summons.

 The court must record its reasons in writing before issuing such a
warrant.

2. Attachment of Property:

 Section 84 BNSS allows a court to order attachment of the

property of a person who has failed to appear in response to a
summons.

In conclusion, summons is a crucial tool for ensuring the appearance of accused

persons and witnesses in criminal proceedings. The CrPC provides detailed
guidelines for issuing valid summons and the consequences of non-compliance,
while also allowing courts discretion in exceptional cases to exempt accused
persons from personal attendance.

16 WARRANT OF ARREST

A warrant of arrest is a written order issued by a court, directing a police officer

to arrest an individual and bring them before the court. The provisions related to
warrants of arrest are outlined in Sections 72-83 of the BNSS.

1. Issuance of Warrant (Section 72)

 A warrant of arrest may be issued by a court if it has reason to believe

that a person has committed an offense punishable with imprisonment
and is evading arrest or is unlikely to appear on a summons.

 The warrant must contain the name and description of the accused and
specify the offense charged.

2. Types of Warrants

 Bailable Warrant: The person arrested under a bailable warrant can

secure their release by furnishing bail with or without sureties.

 Non-Bailable Warrant: In case of a non-bailable warrant, the accused

may have to apply for bail separately, as it is not granted as a matter of
right.

3. Execution of Warrant (Sections 73-79)

 The warrant can be executed by any police officer within the local
jurisdiction or by a police officer endorsed by the named officer.
  If the warrant is to be executed outside the local jurisdiction, it must be
directed to the Executive Magistrate, District Superintendent of Police, or
Commissioner of Police within the jurisdiction.

 Upon arrest, the person must be taken before the appropriate Magistrate
or police authority without unnecessary delay.

 The warrant must be executed between 6 a.m. and 10 p.m., unless

extended by a judge, with the defendant informed of its contents.

4. Procedure After Arrest (Sections 78-83)

 The arrested individual must be presented before a court without undue

delay.

 If the person is arrested under a bailable warrant, they can be released on

furnishing bail.

 If the person is arrested under a non-bailable warrant, they must be

produced before the court, which will decide on further detention or
release on bail.

5. Case Laws

 Joginder Kumar v. State of U.P. (1994): The Supreme Court

emphasized that an arrest should not be made merely because the police
have the power to do so. The police must exhibit clear justification for
every arrest, ensuring that it is based on reasonable satisfaction and a
minimum level of investigation into the genuineness of the complaint.

6. Conclusion

The provisions related to warrants of arrest under the CrPC aim to strike a
balance between the need for effective law enforcement and the protection of
individual rights. By establishing clear guidelines for issuing and executing
warrants, the CrPC ensures that arrests are conducted lawfully and with due
regard for the rights of the accused. The case laws discussed further illustrate
the judiciary's role in upholding these principles and ensuring that the criminal
justice system operates fairly and transparently.

17 BAIL AND IT'S KINDS

“Every criminal offence is an offence against the state; thus, society has a
crucial stake in whether bail is granted or denied. The sanctity of individual
liberty and the interests of society must be perfectly balanced in the decision
on whether to grant or deny bail.”

The term “bail” may be traced back to the old French word “Baillier”. Its true
meaning is to deliver or hand over. The term “bail” is not defined in
India’s Criminal Procedure Code, 1973 (CrPC). Black’s Law
Dictionary describes bail as a security such as money or bond, especially
required by a court for the release of a prisoner who must appear at a future
date. In the case of Kamlapati v. State of West Bengal (1978), the Supreme
Court defined bail as a mechanism that is established for attaining the synthesis
of two essential conceptions of human worth, namely, the right of an accused to
personal freedom and the public interest in which a person’s release is
conditional on the surety producing the accused person in court to stand trial.

Bail is a crucial aspect of the criminal justice system, allowing individuals

accused of crimes to secure their release from custody while ensuring their
availability for trial. The provisions regarding bail in India are primarily governed
by the Code of Criminal Procedure, 1973 (CrPC), specifically under Sections 478
to 496.

Types of Bail
Bail can be classified into several categories based on the nature of the offense
and the stage of legal proceedings. The main types include:

1. Bail in Bailable Offences (Section 478)

 Definition: A bailable offense is one for which the law allows the accused
to claim bail as a matter of right. These offenses are generally less serious
and are specified in the First Schedule of the BNSS.

 Certain types of theft

 Minor assault
 Public nuisance crimes
 Causing hurt
 Mischief


 Provisions:

 Under Section 478, any person arrested for a bailable offense has
the right to be released on bail, either by the police or the court,
without any discretion involved. If the accused is unable to furnish
sureties, they can be released on executing a bond without sureties,
especially if they are indigent.

 Case Law: In Vaman Narayan Ghiya vs. State of Rajasthan, the

Supreme Court held that no jurisdiction lies with the court while granting
bail under Section 436 except to ask for security.

2. Bail in Non-Bailable Offences (Section 480)

 Definition: Non-bailable offenses are more serious crimes where bail is
not a matter of right but a privilege that is granted at the discretion of the
court.

 Murder
 Rape
 Kidnapping
  Provisions:

 Section 480 states that a person accused of a non-bailable offense

can be granted bail only under certain conditions:

 The accused must not be guilty of an offense punishable with

death or life imprisonment.

 The accused should not have previous convictions for serious

offenses.

 The court must believe that the accused is not likely to

abscond or tamper with evidence.

 Case Law: In Kalyan Chandra Sarkar vs. Rajesh Ranjan, the Supreme
Court noted that the detention of an accused in non-bailable offenses
could not be questioned as violating Article 21 of the Constitution,
emphasizing the importance of judicial discretion in such matters.

3. Anticipatory Bail (Section 482)

 Definition: Anticipatory bail is a provision that allows a person to seek
bail in anticipation of being arrested for a non-bailable offense.

 Provisions:

 Under Section 482, a person apprehending arrest can apply for

anticipatory bail. If granted, the individual cannot be arrested until
the court revokes this bail.

 Case Law: In Balchand Jain vs. State of Madhya Pradesh, the

Supreme Court described anticipatory bail as "bail in anticipation of
arrest," emphasizing its role in securing individual liberty. In Siddharam
Satlingappa Mhetre vs. State of Maharashtra, the court highlighted
that anticipatory bail should not be seen as a shield against accusations
but as a means to protect personal liberty.

4. Regular Bail (Section 483)

 Definition: Regular bail refers to bail granted to individuals who are
already in custody.
  Provisions:

 Section 483 provides the High Court and Sessions Court the power
to grant bail to an accused person in custody. The court may impose
conditions on the bail, including the requirement to appear for trial.

 Case Law: In Suresh Vasudeva vs. State, it was clarified that Section
438 applies only to non-bailable offenses, reinforcing the distinction
between anticipatory and regular bail.

5. Interim Bail
 Definition: Interim bail is a temporary bail granted for a short period,
usually until the hearing of a bail application.

 Provisions: While there is no specific provision for interim bail in the

CrPC, it is often granted by courts to provide immediate relief to the
accused until a formal bail application is decided.

Default Bail (Section 187)

 Definition: Default bail is granted when the police fail to complete the
investigation within the prescribed time frame.

 Provisions:

 Section 187(2) mandates that if the investigation is not completed

within 60 days (for offenses punishable with less than 10 years) or
90 days (for offenses punishable with death or life imprisonment),
the accused is entitled to be released on bail.

 Case Law: In Moti Ram v. State of Madhya Pradesh, the Supreme

Court held that the right to default bail is indefeasible and must be
granted if the investigation is not completed within the statutory period.

Conclusion
Bail provisions under the CrPC are designed to balance individual rights with the
interests of justice. The classification of offenses into bailable and non-bailable
categories, along with the provisions for anticipatory and regular bail, ensures
that the accused can secure their liberty while still being subject to the legal
process. Judicial interpretations through various case laws have further clarified
these provisions, emphasizing the importance of protecting personal liberty in
the face of criminal accusations.

18 PROCLAMATION AND ATTACHMENT

Proclamation and attachment are legal processes used in the Indian criminal
justice system to compel the appearance of individuals who are evading arrest
and to secure their property. These processes are governed by specific
provisions in the CrPC, primarily Sections 84 and 85.

1. Proclamation (Section 84)

Definition and Purpose

 Proclamation is an official announcement made by the court requiring an

absconding individual to appear before it. This process is initiated when a
person against whom a warrant of arrest has been issued is deliberately
evading arrest or is untraceable.

Key Provisions

 Issuance: The court must have issued a warrant of arrest prior to the
proclamation. If the court believes that the individual is absconding, it
may issue a proclamation requiring the person to appear at a specified
place and time, typically not less than 30 days from the date of the
proclamation.

 Publication: The proclamation is published in a manner that ensures

public awareness, which may include affixing it at the court and other
public places.

 Notice to Appear: The proclamation must inform the absconding

individual of the requirement to appear within the specified time. If the
 individual surrenders within this period, the court may cancel the warrant
and proceed with the legal process.

2. Attachment of Property (Section 85)

Definition and Purpose

 Attachment refers to the legal process of seizing the property of an

absconding individual to compel their appearance in court. This serves as
a means to pressure the proclaimed offender to surrender.

Key Provisions

 Authority to Attach: The court that issues a proclamation under Section

84 may order the attachment of any movable or immovable property
belonging to the proclaimed person. This attachment can be ordered
simultaneously with the proclamation if the court believes that the
individual is likely to dispose of or remove their property from the
jurisdiction.

 Types of Property:

 Movable Property: Attachment can be executed by:

 Seizing the property.

 Appointing a receiver.

 Issuing an order prohibiting delivery of the property to the

proclaimed person or their representative.

 Immovable Property: Attachment of immovable property, such as

land, is conducted through the district collector or by taking
possession directly. The court may also appoint a receiver or issue
orders to restrict the payment of rent.
  Sale of Property: If the proclaimed individual does not appear within the
specified time, the court may order the sale of the attached property. The
proceeds from the sale can be used to satisfy any legal dues or fines.

3. Case Laws Related to Proclamation and Attachment

 Lavesh v. State of NCT of Delhi (2012): The Supreme Court ruled that
individuals declared as proclaimed offenders under Section 82 are not
entitled to anticipatory bail, emphasizing the seriousness of evading
arrest.

 State of U.P. v. Rajesh Gautam (2003): The court held that the issuance
of a proclamation is a mandatory step before proceeding with the
attachment of property, reinforcing the need for due process.

4. Conclusion

The processes of proclamation and attachment under the CrPC are essential
tools for law enforcement to ensure that individuals who evade arrest are
compelled to appear before the court. By establishing clear guidelines for these
processes, the CrPC aims to balance the need for effective law enforcement with
the protection of individual rights. The provisions ensure that due process is
followed, allowing absconding individuals an opportunity to respond while
safeguarding the interests of justice.

19 MAINTENANCE OF PUBLIC ORDER AND TRANQUILITY

The maintenance of public order and tranquility is a crucial aspect of

governance, ensuring that citizens can live in a safe and secure environment.
The Code of Criminal Procedure (CrPC) provides a comprehensive framework
for law enforcement and judicial authorities to maintain public order, with
specific provisions empowering Executive Magistrates to take necessary
actions.

1. Importance of Public Order and Tranquility

Public order refers to the state of peace and security in society, allowing
individuals to exercise their rights without fear of violence or disorder. The
CrPC emphasizes that maintaining public order is essential for the smooth
functioning of society and the protection of citizens' liberties.

2. Provisions in the CrPC for Maintaining Public Order

The CrPC includes several sections that empower authorities to maintain public
order:

a. Unlawful Assemblies (Sections 148-151)

 Section 148: Police can disperse an unlawful assembly using civil force.

 Section 149: Executive Magistrates can call for police assistance to

disperse unlawful assemblies.

 Section 150: Military assistance can be sought to disperse assemblies if

necessary.

b. Public Nuisances (Sections 152-159)

 Section 152: Magistrates can issue conditional orders to remove public

nuisances.

 Section 153: This section deals with the service of such orders, ensuring
that individuals are notified of the conditions imposed by the magistrate.

 Section 155: Outlines the consequences of failing to comply with a

magistrate's order, which may result in penalties under the Indian Penal
Code (IPC).
c. Urgent Cases of Nuisance or Apprehended Danger (Sections 160-163)

 Section 163: Empowers magistrates to issue orders in urgent cases of

nuisance or apprehended danger, prohibiting gatherings in specified areas
to prevent disorder.

d. Disputes as to Immovable Property (Sections 164-167)

 Section 164: Addresses disputes related to immovable property that may

lead to a breach of peace. The magistrate can intervene to maintain order.

 Section 165: Allows for the attachment of property involved in a dispute

to prevent further escalation.

3. Powers of Executive Magistrates

Executive Magistrates play a vital role in maintaining public order and

tranquility. Their powers under the CrPC include:

a. Preventive Measures (Sections 107-110)

 Section 107: Allows Executive Magistrates to take preventive action

against individuals likely to commit acts that disturb public peace. They
can require such individuals to show cause and execute bonds to maintain
peace for a specified period.

 Section 108: Empowers magistrates to act against individuals who are

likely to commit acts that may harm national integration or incite hatred.

 Section 109: Addresses individuals concealing their presence with the

intent to commit a cognizable offense.

b. Dispersal of Unlawful Assemblies

 Executive Magistrates can use civil force to disperse unlawful assemblies

and may call for police or military assistance if necessary.
c. Conditional Orders for Removal of Nuisance (Section 133)

 Executive Magistrates can issue conditional orders to remove public

nuisances, ensuring compliance through legal means.

d. Dispute Resolution (Sections 145-148)

 Executive Magistrates can handle disputes related to immovable property

that may lead to a breach of peace, providing quicker resolutions
compared to civil courts.

4. Case Laws and Judicial Interpretation

While specific case laws related to public order under the CrPC may not be
extensively documented, the judiciary has consistently emphasized the
importance of maintaining public order through various rulings. Courts have
reinforced the need for police and magistrates to act within the bounds of the
law, ensuring that actions taken to maintain public order do not infringe upon
individual rights.

5. Conclusion

The provisions for the maintenance of public order and tranquility under the
CrPC, coupled with the powers vested in Executive Magistrates, are essential
for ensuring a peaceful society. By establishing clear guidelines for dealing with
unlawful assemblies, public nuisances, and urgent situations, the CrPC
empowers law enforcement and magistrates to take necessary actions while
safeguarding the rights of individuals. This balance is crucial for the effective
functioning of the criminal justice system and the protection of civil liberties.

21 COGNIZANCE OF A CASE BY COURT

Cognizance of a Case by Court under the CrPC

Cognizance is a crucial concept in the criminal justice system, marking the

point at which a court or magistrate takes judicial notice of an alleged offense.
The Code of Criminal Procedure (CrPC) outlines the provisions related to the
cognizance of cases by courts, ensuring that criminal proceedings are initiated
judiciously.

1. Cognizance by Magistrates (Section 210)

According to Section 210 of the CrPC, a magistrate can take cognizance of an

offense in three ways:

1. Upon a Police Report: When a police officer submits a report to the

magistrate about the commission of an offense, the magistrate can take
cognizance based on this report.

2. Upon a Complaint: If a complaint is filed by a person who claims to be

an aggrieved party or by someone authorized by the aggrieved party, the
magistrate can take cognizance of the offense.

3. Upon Information Received from Any Other Source: Even if there is

no formal police report or complaint, a magistrate can take cognizance
based on information received from any other source, such as a third
party or the magistrate's own knowledge.

2. Cognizance by Courts of Session (Section 213)

Section 213 of the CrPC states that a Court of Session cannot take cognizance
of an offense as a court of original jurisdiction unless the case has been
committed to it by a magistrate. This means that Sessions Courts primarily deal
with cases that have been referred to them by lower courts.
3. Conditions for Cognizance

For a court to take cognizance of an offense, certain conditions must be met:

 There must be sufficient ground for proceeding with the case.

 The court must have jurisdiction over the offense.

 The case must not be barred by limitation.

 The case must not be covered by any special law that prohibits the court
from taking cognizance.

4. Significance of Cognizance

Cognizance is a crucial step in the initiation of criminal proceedings. It marks

the point at which the court becomes aware of the alleged offense and decides to
proceed with the case. Cognizance ensures fairness and due process, preventing
arbitrary action and ensuring that the legal process is initiated only when there
is a prima facie case.

5. Challenges and Concerns

While cognizance is fundamental to the criminal justice system, it is not without

challenges and concerns. These include potential delays in the initiation of legal
proceedings, the risk of misuse by initiating baseless cases, and the need for
judicial sensitivity in exercising discretion while taking cognizance.

6. Conclusion

Cognizance of a case by a court under the CrPC is a critical element in the

criminal justice system of India. It serves as a gatekeeper, ensuring that judicial
processes are initiated judiciously and fairly. The provisions related to
cognizance aim to strike a balance between the interests of justice and the
protection of individual rights, contributing to the effective and just
administration of criminal law
22 SUMMONS CASE AND WARRANT CASE

The BNSS classifies criminal cases into two main categories: Summons Cases
and Warrant Cases. This classification is based on the nature of the offense and
the procedure to be followed during the trial.

1. Summons Cases

Summons cases are defined in Section 2(x) of the BNSS. Any case that does not
fall under the category of warrant cases is considered a summons case. These
cases typically involve less serious, bailable, and compoundable offenses.
Summons cases are exclusively heard by a Magistrate.

Key Features of Summons Cases:

 Punishment does not exceed imprisonment for two years.

 Procedure for trial is outlined in Sections 274 to 282 of the CrPC.

 Trial is less formal compared to other types of trials, such as session trials
or warrant cases.

 Accused is informed about the accusation and asked if they admit guilt
(Section 274).

 If the accused pleads guilty, the Magistrate records the plea and convicts
them (Section 275).

 If the accused does not plead guilty, the Magistrate proceeds with a full
trial, recording evidence from both prosecution and defense (Section
277).
2. Warrant Cases

Warrant cases are defined in Section 2(z) of the BNSS. These cases involve
offenses punishable with death, imprisonment for life, or imprisonment for a
term exceeding two years.

Key Features of Warrant Cases:

 Punishment may include death, imprisonment for life, or imprisonment

for a term exceeding two years.

 Procedure for trial is outlined in Sections 261 to 273 of the CrPC.

 Trial is more formal compared to summons cases.

 Accused is informed of the accusation and provided with a copy of the

police report (Section 261).

 Accused is asked to plead guilty or not guilty (Section 264).

 If the accused pleads not guilty, the Magistrate proceeds with the trial,
recording evidence from both prosecution and defense (Section 266).

3. Differences between Summons and Warrant Cases

Basis Summons Cases Warrant Cases

Death, imprisonment for

Imprisonment not life, or imprisonment
Punishment exceeding two years exceeding two years

Less formal, outlined in More formal, outlined

Procedure Sections 274 to 282 in Sections 261 to 273

Framing of Not mandatory, accused is Mandatory, accused is

Charges informed of the provided with a copy of
Basis Summons Cases Warrant Cases

the police report

accusation (Section 274) (Section 261)

Accused can plead guilty,

and the Magistrate can Accused can plead
convict them (Sections guilty or not guilty
Plea 275-276) (Section 264)

4. Conclusion

The classification of cases into summons and warrant cases under the CrPC is
crucial for determining the appropriate procedure to be followed during the trial.
While summons cases involve less serious offenses and follow a simpler
procedure, warrant cases deal with more severe crimes and require a more
formal trial process. This distinction ensures that justice is served efficiently
while safeguarding the rights of the accused.

25. AZMAL KASAB CASE

Azmal Kasab was one of the perpetrators of the 2008 Mumbai terror attacks.
His case highlights the application of various provisions of the Code of
Criminal Procedure (CrPC) in dealing with high-profile criminal cases
involving terrorism.

Key Aspects of the Azmal Kasab Case

1. Arrest and Investigation: Kasab was arrested at the site of the attacks
and was the only terrorist caught alive. The police conducted a thorough
investigation under the provisions of the CrPC, collecting evidence and
recording witness statements.

2. Framing of Charges: Based on the investigation, the police filed a

charge sheet against Kasab under various sections of the Indian Penal
Code (IPC) and the Unlawful Activities (Prevention) Act. The court took
cognizance of the charges under Section 190 of the CrPC.

3. Appointment of Counsel: Kasab was provided with a court-appointed

lawyer to ensure a fair trial, as per the provisions of the CrPC
guaranteeing the right to legal representation.

4. In-Camera Proceedings: To protect witnesses and maintain the

confidentiality of sensitive information, the trial was conducted in-
camera, as permitted under Section 327 of the CrPC.

5. Examination of Witnesses: The prosecution examined several witnesses,

including police officers and survivors of the attacks, in accordance with
the procedures laid down in Sections 273 and 274 of the CrPC.

6. Confession: Kasab confessed to his involvement in the attacks, but later

retracted his statement. The court considered his confession under Section
164 of the CrPC, which requires the recording of confessions before a
magistrate.

7. Judgment and Sentencing: Kasab was found guilty and sentenced to

death by the trial court. The judgment was upheld by the High Court and
the Supreme Court, which ruled that the case fell under the "rarest of
rare" category warranting capital punishment.
 8. Execution: Kasab's mercy petition was rejected by the President, and he
was executed at Yerwada Central Jail in Pune, as per the provisions of the
CrPC governing the execution of death sentences.

Significance of the Case

The Azmal Kasab case demonstrated the effective application of the CrPC in
dealing with high-stakes criminal cases involving terrorism. It highlighted the
importance of following due process, ensuring a fair trial, and upholding the
rule of law even in the face of heinous crimes. The case also underscored the
need for effective coordination between various law enforcement agencies and
the judiciary in combating terrorism.

Conclusion

The Azmal Kasab case serves as an example of how the provisions of the CrPC
can be utilized to ensure justice in complex criminal cases. It showcases the
resilience of the Indian criminal justice system in dealing with challenges posed
by terrorism while adhering to the principles of fairness and due process.

The recent Kolkata rape and murder incident involving a trainee doctor has
sparked significant public outrage and has led to extensive legal and procedural
actions under the provisions of the Code of Criminal Procedure (CrPC) and the
Indian Penal Code (IPC). Below is a detailed overview of the case's progression,
the legal framework involved, and how these provisions have been applied.

Overview of the Incident

On August 9, 2024, Moumita Debnath, a postgraduate trainee doctor at R.G.

Kar Medical College and Hospital, was found raped and murdered in a seminar
room within the hospital premises. The incident triggered widespread protests
and demands for justice, highlighting serious concerns regarding women's
safety in West Bengal.

Progress of the Case

Initial Investigation

1. Discovery of the Body: The victim's body was discovered on August 9,

leading to immediate police involvement. The Kolkata Police initially
handled the case, but allegations arose regarding their conduct, including
claims that they attempted to suppress evidence and offered bribes to the
victim's family.

2. Public Outcry: Following the discovery, protests erupted, with

demonstrators demanding accountability from the police and the state
government. The protests intensified, leading to clashes between
demonstrators and police.

3. Transfer to CBI: Due to public pressure and allegations of police

misconduct, the Calcutta High Court ordered the Central Bureau of
Investigation (CBI) to take over the investigation in mid-August.

Legal Proceedings

1. Filing of FIR: The initial FIR was registered under various sections of
the IPC, including those pertaining to rape (Section 376) and murder
(Section 302). The police also invoked relevant provisions of the CrPC to
ensure a thorough investigation.

2. Arrests: The prime accused, Sanjay Roy, a civic police volunteer, was
arrested shortly after the incident. Following his arrest, he underwent a
polygraph test to determine the veracity of his statements regarding the
crime.
 3. Charges and Provisions: The CBI has been gathering evidence and
preparing charges against the accused. The charges are likely to include
serious offenses under the IPC, such as:

 Section 376: Punishment for rape.

 Section 302: Punishment for murder.

 Section 201: Causing disappearance of evidence.

Legislative Response

In response to the incident, the West Bengal government passed the Aparajita
Woman and Child (West Bengal Criminal Laws and Amendment) Bill,
2024. This bill includes provisions for:

 Capital punishment for rape convicts if the crime results in the victim's
death or leaves her in a vegetative state.

 Life imprisonment without parole for other rape offenses.

 Establishment of dedicated courts to expedite trials for sexual offenses.

The bill was sent to the President for assent, reflecting a legislative push to
strengthen laws against sexual violence.

Court Proceedings

1. High Court Involvement: The Calcutta High Court has been actively
monitoring the case, directing the CBI to report on various aspects,
including social media posts related to the victim that were deemed
offensive.

2. Public Interest Litigation: The court has received petitions urging it to

ensure a thorough investigation and to address the conduct of the police
in handling the case.
Usage of Provisions of CrPC and IPC

Provisions of the CrPC

 Investigation and Evidence Gathering: The CBI's investigation is

guided by the CrPC, which outlines the procedures for collecting
evidence, recording statements, and conducting searches. Sections such
as Section 161 (examination of witnesses) and Section 164 (recording
confessions) are critical in this context.

 Cognizance and Charges: The court takes cognizance of the case

under Section 190, allowing it to proceed based on the charges filed by
the CBI.

 Trial Procedures: The trial will follow the procedures outlined in the
CrPC, including the rights of the accused and the obligations of the
prosecution to present evidence.

Provisions of the IPC

 Rape and Murder Charges: The IPC provides the legal basis for
charging the accused with serious offenses, including Section 376 for
rape and Section 302 for murder. These sections outline the definitions,
punishments, and conditions related to these crimes.

 Punishments: The IPC specifies the punishments for the offenses

committed, which will be crucial in determining the outcome of the trial.

Conclusion

The Kolkata rape and murder incident has not only highlighted the pressing
issues of women's safety in India but has also prompted significant legal and
legislative responses. The application of the provisions of the CrPC and IPC in
this case underscores the importance of a robust legal framework in addressing
crimes against women and ensuring justice. The ongoing developments in the
case, including public protests and legislative amendments, reflect a society
demanding accountability and reform in the face of heinous acts of violence.