Explain the jurisdiction and powers of various criminal

courts under the code of criminal procedure.

Ans:

Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India is as follows

1. The Supreme Court of India – The Supreme Court Of India,

being the apex court of India, was established under
Article 124 of Part V and Chapter IV of the Constitution of
India.
2. The High Courts of India–
 The high courts are at the second level of the
hierarchy.
 They are governed by Article 141 of the Constitution
of India and are bound by the judgement of the Apex
Court.

Lower Courts of India have been classified as follows.

3. Metropolitan Courts
1. Sessions Court
2. Chief Metropolitan Magistrate
3. First Class Metropolitan Magistrate
4. District Courts
1. Sessions Court
CrPC P a g e 1 | 249
 2. First Class Judicial Magistrate
3. Second Class Judicial Magistrate
4. Executive Magistrate

Constitution of Criminal Courts in India.

1. The Sessions Judge– Section 9 of the CrPC talks about the

establishment of the Sessions Court.
 The State Government establishes the Sessions Court
which has to be presided by a Judge appointed by the
High Court.
 The High Court appoints Additional as well as
Assistant Sessions Judges.
 The Court of Sessions ordinarily sits at such place or
places as ordered by the High Court. But in any
particular case, if the Court of Session is of the
opinion that it will have to cater to the convenience
of the parties and witnesses, it shall preside its
sittings at any other place, after the consent of the
prosecution and the accused.
 According to section 10 of the CrPC, the assistant
sessions judges are answerable to the sessions
judge.

2. The Additional/ Assistant Sessions Judge- These are

appointed by the High Court of a particular state. They are
responsible for cases relating to murders, theft, dacoity,
pick-pocketing and other such cases in case of absence of
the Sessions Judge.

3. The Judicial Magistrate– In every district, which is not a

metropolitan area, there shall be as many as Judicial
Magistrates of first class and of second class. The
presiding officers shall be appointed by the High Courts.
Every Judicial Magistrate shall be subordinate to the
Sessions Judge.

4. Chief Judicial Magistrate- Except for the Metropolitan area,

the Judicial Magistrate of the first class shall be appointed
as the Chief Judicial Magistrate. Only the Judicial
Magistrate of First Class may be designated as Additional
Chief Judicial Magistrate.
CrPC P a g e 2 | 249
 5. Metropolitan Magistrate- They are established in
Metropolitan areas. The High Courts have the power to
appoint the presiding officers. The Metropolitan Magistrate
shall be appointed as the Chief Metropolitan Magistrate.
The Metropolitan Magistrate shall work under the
instructions of the Sessions Judge.

6. Executive Magistrate- According to section 20 in every

district and in every metropolitan area, an Executive
Magistrate shall be appointed by the State Government
and one of them becomes District Magistrate.

Powers of Criminal Courts

1. The Apex Court
The Supreme Court is the ultimate court, at the top of the
Judicial system. It has the supreme judicial authority in our
country.

 Federal Court– Article 131 gives the power of original

jurisdiction to the Supreme Court, to resolve the dispute
arising between the Centre and the States or between two
States.
 Interpretation of the Constitution- Only the Apex Court has
the power to settle a question based on any issue related
to the Constitution.
 Power Of Judicial Review (Article 137)- All the laws enacted
are subjected to scrutiny by the Judiciary.
 Court of Appeal – The apex court is the highest court for
appeal in India. It has the power to hear appeals from all
the cases lying in the various High Courts and subordinate
courts of our country. A certificate of the grant is to be
provided according to Article 132(1), 133(1) and 134 of
the Constitution with respect to any judgment, decree or
final order of all cases of the High Court involving the
question of law. Appeals to the Supreme Court can be
made under the following categories: -
1. Constitutional Matters
2. Civil Matters
3. Criminal Matters
4. Special Leave Petition

CrPC P a g e 3 | 249
2. The High Courts
 Original Jurisdiction – In some issues, the case can be
directly filed in the High Courts. This is known as the
original jurisdiction of the High Court. E.g., In matters
related to fundamental rights, Marriage and Divorce
cases.
 Appellate Jurisdiction- The High Court is the Appellate
Court for the cases coming up from the trial court.
 Supervisory Jurisdiction- This refers to the power of
general superintendence of the High Court over the
matters of all the subordinate courts.

The powers of the various courts have been highlighted in the

Constitution of India. Apart from these courts, the power and
functions of the subordinate criminal courts have been provided
under the Code Of Criminal Procedure, 1973, as mentioned
under section 6.
 Court of Session
 First Class Judicial Magistrate and, a metropolitan
magistrate in any metropolitan area
 Second Class Judicial Magistrate
 Executive Magistrates
The power of the various subordinate courts is mentioned from
section 26-35, under the Code of Criminal Procedure, which has
been described below.

Section 26 mentions the list of Courts which are eligible to try

offences – According to Section 26, any offence mentioned
under the Indian Penal Code may be tried by:

1. the High Court

2. the Court of Session
3. any other Court as specified in the First Schedule of the
Code of Criminal Procedure

Although it has to be ensured that any offence committed

under section 376, section 376A, section 376B, section 376C,
section 376D and also section 376E of the Indian Penal Code,
be tried by a woman judge.

3. The Sessions Court

CrPC P a g e 4 | 249
The State Government establishes the Sessions Court which
has to be presided by a Judge appointed by the High Court. The
High Court appoints Additional as well as Assistant Sessions
Judges. The Court of Sessions ordinarily sits at such place or
places as ordered by the High Court.

4. The Magistrate Court

The Magistrate judges are usually appointed by the High Court.

The jurisdiction in case of Juveniles (Section 27)– Any person

who is below the age of sixteen years, who is a juvenile is
exempted from the death penalty and punishment for
imprisonment for life. The Chief Judicial Magistrate, or any other
Court specially empowered under the Children Act, 1960 (60 of
1960) or any other law for the time being in force which
provides for the treatment, training and rehabilitation of
youthful offenders, are eligible for trying such cases.

Miscellaneous Powers
Mode of Conferring Powers – Section 32 states that the High
Court or the State Governments have the power by virtue of an
order to empower people by their titles.
Withdrawal of Powers- According to Section 33, the High Court
or the State Government, have the power to withdraw the
powers conferred by them under this code.
Powers of Judges and Magistrate exercisable by their
successors-in-office- According to Section 35, subject to the
other provisions of this Code, the powers and duties of a Judge
or Magistrate may be exercised or performed by their
successors-in-chief.

Sentences which can be passed by the various courts

1. Sentences which the High Courts and Sessions Judges
(Section 28) can pass the following sentences.
 Any sentence authorised by law can be passed by the
High Court.
 A sessions or additional sessions Judge has the authority
to pass any sentence authorised by law. But, while passing
death sentence prior permission from High Court is
required.
 An Assistant Sessions Judge has the authority to pass any
sentence which has been authorised by law. Such judge
CrPC P a g e 5 | 249
 cannot pass a death sentence, life imprisonment or
imprisonment for more than 10 years.
2. Sentences passed by the Magistrates (Section 29) – The
Court of Chief Judicial Magistrate is authorised to pass any
sentence approved by law except for death sentence, life
imprisonment or imprisonment for more than seven years.
 The first class Magistrate is eligible to pass a sentence of
imprisonment for a term of not more than three years, or
fine not exceeding ten thousand rupees or both.
 The Second Class Magistrate may pass a sentence of
imprisonment for a term not more than one year, or fine or
both. The fine imposed cannot exceed five thousand
rupees.
 The Chief Metropolitan Magistrate has the powers of that
of a Chief Judicial Magistrate as well as that of a
Metropolitan Magistrate, in addition to the powers of the
First Class Magistrate.

3. The sentence for default of fine (Section 30)– According to

this section, the Magistrate has the power to pass
imprisonment for default of payment of fine as specified by law.
But the following conditions need to be satisfied.
 The term should not go beyond the ambit of the powers of
the Magistrate (under section 29).
 The term should not exceed one-fourth of the term of
imprisonment which the Magistrate is competent to award
only if imprisonment awarded, is a part of the substantive
sentence as punishment for the offence.
 The imprisonment sentenced under this section may be in
addition to a substantive sentence of imprisonment for the
maximum term awardable by the Magistrate under section
29.
 The sentence in cases of conviction of several offences at
one trial (Section 31)– According to this section, when a
person is convicted for two or more offences, at one trial,
the Court may sentence him for such offence in one trial,
subject to the provisions of section 71.
 The court also has the power to award several
punishments. Such sentences of imprisonment may
commence after the expiration of other punishments.
Unless courts direct such punishments run simultaneously
with each other. In the case of succeeding sentences, it is
CrPC P a g e 6 | 249
 not necessary for the Court to send the offender before
High court. If the aggregate punishment for several
offences exceeds the power of the court to inflict the
punishment for a single offence. Provided that.
 The imprisonment should not exceed a term of fourteen
years.
 the aggregate punishment also shall not exceed twice the
amount of punishment which the Court is competent to
inflict for a single offence.
For appeal, the aggregate punishment passed against him
under this section is normally assumed as a single sentence.

Changes to be made in the existing distribution of

power among the courts.
Currently, in India, there are no specific guidelines on the
issuance of Death sentence in criminal cases. Moreover, either
the maximum or the minimum punishment have only been
mentioned in most of the offences. It has been left upon the
judge to decide, what should be the exact term of punishment
in any particular circumstance.

There is no uniform procedure or performa for the judges to

give a particular sentence in cases of similar circumstances.
The quantum of punishment varies even in cases having similar
facts. Therefore a structured layout should be given to the
Judges mentioning the criteria on which they should base their
judgements.

Conclusion
The Constitution of India holds the absolute authority and value
in India. Hence, it becomes necessary to provide safeguards for
its protection and therefore, the courts have been vested with
various powers to keep a check and to ensure that no authority
misuses its powers and encroaches upon others domain. The
courtrooms are the places where people can take their
grievances and get their disputes resolved upon the failure of
other systems of the Government.
The hierarchy of the Courts has been developed in such a
manner that it becomes easy for everyone who is living in this
country to knock the doors of the courts whenever a dispute
arises. It provides a platform for the citizens for appealing to
higher courts, in case they feel that justice has been denied to
CrPC P a g e 7 | 249
them by the lower courts. India is a country with a huge
population in it. Therefore, it needs this existing system of
Judiciary to prosper and makes its process easier, so that
people can approach it easily so that Justice is given to all
citizens of this country.

What is charge? Explain briefly the rules regarding

joinder of charges.
What is a Charge?
The charge is defined under Section 2(b) of the Code Of
Criminal Procedure, 1973. According to which, “charges means
the head of the charge when there are more than one charges”.
To put it in a more straightforward language, after the trial is
initiated, the accused person is informed about the allegations
which have been raised against him and the provisions of the
Code under which he would be tried by the Court. The
accusations put up against the accused are thus known as
‘Charges’ in the legal language.

Joinder of Charges
In the case of K. Satwant Singh v. State Of Punjab AIR 1960 SC
266, that the sections of joinder of charges are not compelling
in nature. They only permit the joint trial of charges under
certain circumstances, and the courts may consider the same
in the interest of the administration of justice after thoroughly
studying the facts and circumstances of each case.

Essential provision related to framing of Charges:

 The general principle regarding charges as purported by
Section 218 of the Code Of Criminal Procedure, 1973 is
that every offence of which a particular has been accused
shall come under a separate charge and each such charge
shall be tried separately and distinctly. This means that
each offence has to be treated as a separate entity and
should be tried distinctively.
 But, Section 218(2) carves out exceptions to Section
218(1). The provisions of Section 219, 220, 221 and
Section 223, override the provisions as mentioned under
Section 218 of the Code Of Criminal Procedure. This
means that Section 219- 223 talks about the Joinder Of
Charges.

CrPC P a g e 8 | 249
The exceptions to Section 218
Exception 1
Three offences which are of the same kind, committed within a
year may be charged together: This section has been provided
to avoid multiplicity of the proceedings when the offences are
of the same kind. It contains two circumstances:

1. According to Section 219(1), if a person has been accused

of three offences of the same kind then the person can be
tried for all the offences together if they have been
committed within a span of twelve months from the first to
the last offence.
2. Section 219(2) talks about the offences which are of the
same kind, also punishable with the same quantum of
punishment.

Exception 2
Offences which are committed in the course of the same
transaction and tried together. It consists of the following:

1. If a person has committed a series of acts, which are so

intrinsically connected together that they form a single
transaction, such series of offences shall be charged and
tried together. The word ‘transaction’ has not been
defined under the Code
2. In case of offences of Criminal breach of trust or dishonest
misappropriation of property and their companion offences
of falsification of accounts. Many a time, the offences of
criminal breach of trust or dishonest misappropriation of
property are committed along with the offence such as
falsification of accounts etc., the latter offence committed
in order to fulfil the objective of the former offence. In
such cases, Section 220(2) enables the Courts to try such
offences together.
3. If a single act falls under within different and separate
definitions of offences, such different offences shall be
tried together as mentioned under Section 220(3). For
e.g.: If a person X, wrongfully strikes a person Y with a
cane, then X can either be charged with and tried
separately of offences under Sections 352 and Sections
323 of the Indian Penal Code or may be tried and
convicted together.
CrPC P a g e 9 | 249
 4. If the acts which form an offence, also constitute different
offences when separately taken and tried or taken in
groups, such offences shall be tried to be one in a single
trial. For e.g.: If A commits the offence of robbery on B,
and while doing so he voluntarily causes hurt to B, then A
may be separately charged with, and convicted of the
offences mentioned under Sections 323, 392 and 394 of
the Indian Penal Code.

Exception 3
Section 221 provides for the cases wherein there is some doubt
related to the circumstances and incidents which took place
during the commission of the offence. According to this section,
if the accused has committed a series of acts which lead to
confusion regarding the facts should be proved, the accused
might be charged with any or all of such offences or charged for
alternative offences. In such cases, the accused is charged for
one offence and during the stage of evidence, if it is proved
that he has committed a different offence, he may be convicted
for the same even though he was not charged with the same.

Exception 4
Section 223 talks about the class of persons who can be tried
jointly. This section permits a joint trial of several persons under
the specified circumstances as there exists some nexus among
the various offences committed. The various classes shall not
be treated as mutually exclusive and could be combined
together if necessary. According to this section, the following
classes of persons may be tried and charged together:

1. The accused persons who have committed the same

offence in the course of the same transaction.
2. The persons who have committed a particular offence and
those who have abetted the commission.
3. The persons who are covered under the ambit of Section
219.
4. The persons who in the same course of the transaction
have committed different offences.
5. The persons who have committed offences such as theft,
extortion, cheating, or criminal misappropriation of the
property along with the persons who have received,
CrPC P a g e 10 | 249
 retained, assisted in the disposal or concealment of
property, possession of which is illegal and has been
alleged to be illegal.
6. The persons who have been accused of commission of
offences under Section 411 and section 414 of the Indian
Penal Code or under those sections in respect of stolen
property, possession of which has already been
transferred by another offence.
7. The persons who have been accused of any offence under
Chapter XII of the Indian Penal Code related to the
counterfeit coins.

The accused persons whose cases have not been covered

under any of the classes of Section 223, cannot himself claim a
joint trial. The proviso to this Section puts a check on the
discretionary power of the court.

The rules contained from Section 218 to Section 223 have been
made for the benefit of the accused. It is not required to treat
the various classes of sections as mutually exclusive. The
Courts have been given the authority to combine the provisions
of more than two clauses. The joint trial of several persons
partly by applying one clause and by partly applying another
clause has also been authorised.

Power of court to order separate trial in cases wherein

joinder of charges or of offenders is permissible

 The general rule in case of charges is that there shall be a

separate charge for every distinct offence, which shall be
tried separately. But, Sections 219, 220, 221 and Section
223 carve out the exceptions to this basic rule. In simpler
words, a separate trial is a rule while a joint trial is its
exception.
 The provisions regarding the exceptions have only
enabling nature, and it is at the discretion of the Courts
whether or not to apply them to a particular case. In the
case of Ranchhod Lal v. State of Madhya Pradesh AIR 1965
SC 1248, it was held that it is at the discretion of the court
whether to apply Section 219, Section 220 and section
223 of the Code Of Criminal Procedure, 1973 or resort to

CrPC P a g e 11 | 249
 Section 218. The accused has not been given this right to
resort to joinder of charges.
 The question regarding the misjoinder of charges and joint
trial for distinct offences was answered by the Supreme
Court in the case of Union Of India v. Ajeet Singh (2013) 4
SCC 186. It was held by the court that the principles
underlying the provisions in the Code of Criminal
Procedure, 1973 only act as a guiding principle.

Conviction of an offence not charged when such offence

is included in the offence charged
According to Section 222, if the accused is charged with an
offence consisting of several particulars, some of which if
combined and proved to form a minor offence, then he may be
convicted of such minor offence. Although the meaning of the
term ‘minor offence’ is not defined under the code, it means an
offence which has lesser punishment than the other offence of
which the accused has been charged.

Applicability of provisions related to joinder of charges

in cases where no charge has been formally made
It is not necessary in the summons cases to frame a formal
charge. Mere stating to the accused the particulars of the
offences which he has been charged with would suffice. In such
cases, the question related to the applicability of provisions of
joinder of charges arises. Such a question has not been
expressly dealt with by the Code Of Criminal Procedure, 1973.

But, it has been established via a number of precedents like in

the case of Upendra Nath Biswas v. Emperor ILR (1913) 41 CaL
694, Indramani v. Chanda Bewa 1956 Cri LJ 1218 that the
provisions of joinder of cases are equally applicable to the
summons case also.

Withdrawal of remaining charges on conviction on one

of several charges
Section 224 of the Code Of Criminal Procedure, 1973 talks
about the withdrawal of remaining charges. It is applicable only
in cases where the accused has been convicted of one of
several distinct charges before the other charges have been
tried.

CrPC P a g e 12 | 249
Conclusion
The framing of charge is the most basic step of the process of
initiation of a trial in a criminal proceeding. Utmost care must
be taken while the charges are being framed as wrong framing
may lead to denial of justice. Therefore, one should abstain
from wrongful framing and joinder of charges as such an
inefficiency would vitiate the very basic essence of a fair trial.

While framing the charges, the judge needs to take care of the
fact that there is an existence of a case prima facie and should
give his reasons for discharging the case in writing.

The sections which deal with different types of trials only

mention that only the duty of framing of charges has been
vested upon the courts. The court may alter/ add to any charge
at any time before the judgment is pronounced. Moreover, the
provisions dealing with the joinder of charges are not strictly
applicable to the judges. There is an existence of discretion
upon the judges to either combine the charges or try each
charge separately depending upon the facts and circumstances
of each case.
Discuss the provisions of Cr.P.C. relating to
maintenance.

Maintenance Under Section 125 Cr PC

1. The objective to enforce the social duty to prevent
Vagrancy
(a poor person without a home or a job, who moves from place to place) and Destitution,

leading to crimes.
2. Maintenance granted irrespective of personal laws.
3. It is a tentative remedy, the proceedings being summary.
4. An economic umbrella to the weaker, having no sufficient
means to maintain themselves.
5. The Wives, Children and Parents being the Beneficiaries.

The Inclusive Definition of Wife

1. Wife includes a woman who has not remarried after
divorce.
2. The object is to frustrate the unscrupulous husbands from
making easy divorces under personal law.
3. The Shah Bano Case.

CrPC P a g e 13 | 249
 4. Consequently, the retrograde legislation--The Muslim
Women (Protection of Rights on Divorce) Act, 1986
5. S.C. resolving the controversy in Daniel Latifi V. UoI, 2001
determining the rights of Muslim women.

The Wife to be a Legally Married Woman

1. The legality of marriage decided under personal law.
2. In a case of illegality due to bigamy, the victim has to
suffer and the perpetrator goes scot-free.
3. The requirement of legal marriage is frustrating the very
objective.
4. Plea of Ignorance of first marriage refused by court
stressing the paramount nature of legislative intention
5. The need to delete this precondition in a country where
most marriages could be held illegal due to manifold
reasons.
6. The judicial prejudice in favour of marriage.

Maintenance to the weaker means

1. The patriarchal social context leading the legislature and
the judiciary to provide for maintenance to:
2. The wife by the husband,
3. The Child by its father, and
4. The father and the mother by the son.
5. The silence of law respecting the liability of the daughter.
6. Supreme Court making daughter duty-bound to maintain
her parents, stressing social obligation.
7. (Vijaya Manohar Arbat v/s Kashirao Rajaram Sawai.)

The determination of the Quantum

1. Inflation and increased standard of living paving way to
the removal of ceiling.
2. Unable to maintain herself relates to the actual and
separate income of the wife and not the possible or
potential income.
3. The fixing of the amount shall go beyond the expenses for
her primary needs.
4. The date of effect shall be from the date of application,
considering the delay.
5. Besides personal income, the income from the corpus
property of the liable person also shall be taken into
account.

CrPC P a g e 14 | 249
Eligibility to Maintenance
1. Living in adultery, means not a single act, shall not be
used in a way to harass the wife.
2. Wife must not refuse, without sufficient reasons, to live
with her husband.
3. The wife is not living separately by mutual consent.
4. Person claiming maintenance must not be capable of
maintaining herself. (Abdul Munaf v/s Salima, 1979. Cant,
H.C.)
5. The wife is not living separately by mutual consent.

Procedure: Maintenance Order

1. The amount to be modestly consistent with the status of
the family.
2. The removal of ceiling of Rs 500/- per month and the fixing
of time-frame through Amendment Act, 2001
3. Warrant is issued on every breach of the order for levying
the amount.
4. The imprisonment of one month is a last resort when
recourse to attachment and sale fail
5. The imprisonment is to pressurize enforcement and not a
mode to satisfy the liability.

Procedure: Cancellation of Maintenance Order:

1. The wife is living in adultery.
2. Without sufficient reasons she refuses to live with the
husband.
3. They are living separately by mutual consent.
4. On a decision of a competent civil court.
5. She remarries after divorce; the order is cancelled w.e.f.
the date of remarriage.
6. On complete compliance with the order.

Order for maintenance of wives and children (Section

125 of CrPc)
Legal provisions regarding order for maintenance of wives and
children under section 125 of the Code of Criminal Procedure,
1973.

The maintenance proceedings is not to punish a person for his

past neglect, but to prevent vagrancy leading to the
CrPC P a g e 15 | 249
commission of crime and starvation by compelling those who
can do so to support those who are unable to support
themselves and who have a moral claim to support. The
provisions of maintenance of the Code of Criminal Procedure
are applicable to persons belonging to all religions and have no
relationship with the personal laws of the parties.

Persons entitled to claim maintenance: According to

Section 125(1) of the Code, the following persons are
entitled to claim maintenance under certain circumstances:
1. Wife:
As per Section 125(l) (a) of the Code, if any person having
sufficient means neglects or refuses to maintain his wife,
unable to maintain herself, a Magistrate of the first class may,
upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife at
such monthly rate, as such Magistrate thinks fit, and to pay the
same to such person as the Magistrate may from time to time
direct.

Here 'wife' includes a woman who has been divorced by, or has
obtained a divorce from, her husband and has not remarried.

The wife may be of any age-minor or major. 'Wife' for the

purposes of Section 125 means a legally married woman. The
legality of the marriage would be governed by the personal
laws applicable to the parties. If the fact of legally valid
marriage is disputed, the applicant will have to prove marriage.
A marriage solemnized by exchange of garlands was held
invalid.

Under Section 125(l)(a) of the Code, maintenance allowance

cannot be granted to every wife who is neglected by husband
or whose husband refuses to maintain her, but can only be
granted to a wife who is unable to maintain herself but not a
wife who is maintaining herself with some difficulty.

By the phrase 'unable to maintain herself', it is not meant that

she should be absolutely destitute and should be first on the
street, should beg and be in tattered clothes and then only she
will be entitled to move an application under Section 125 of the
Code.
CrPC P a g e 16 | 249
If a person is willing to maintain his wife in accordance with his
civil obligation, there is neither neglect or refusal. Where the
husband is making payment of some amount to the wife but
the amount is not sufficient to meet her basic necessaries of
life, it is clearly 'neglect' or refusal to maintain the wife within
the meaning of Section 125 of the Code.

In Savitaben Somabhai Bhatiya v. State of Gujarat, it was held

that Section 125 of the Code has been enacted in the interest
of a wife and one who wants to take the benefit under sub-
section (l)(a) of Section 125 has to establish that she is the wife
of the person concerned.

The issue can be decided only by a reference to the law

applicable to the parties. It is only when such a relationship
with reference to personal law is established that the
application for maintenance can be maintained. The issue
whether Section 125 is attracted or not, cannot be answered
except by a reference to the appropriate law governing the
parties.

Marriage of a woman, even if it is in accordance with the Hindu

rites with a man, having a spouse living at the time of the
marriage, is a nullity in the eye of law. The lady will not get the
status of a legally wedded wife and accordingly not entitled to
the benefit of Section 125 of the Code of Criminal Procedure.

The wife is not entitled to receive an allowance from her

husband in three cases, i.e.,:
1. if she is living in adultery, or
2. if she refuses to live with her husband and without any
sufficient cause, or
3. if they are living separately by mutual consent.

Section 125 of the Code gives effect to the fundamental and

natural duty of a man to maintain his wife. Section 125
provides a statutory right and cannot be affected by personal
law. The right conferred upon the wife by the provisions of
Section 125 is independent of personal law and to claim
protection of Mohammedan Law in derogation of the statutory
provisions of the Code is not permissible.
CrPC P a g e 17 | 249
A wife is entitled to maintenance under Section 125,
irrespective of the fact that she is not entitled to maintenance
under the personal law.

In Chaturbhuj v. Sita Bai, the respondent had filed an

application under Section 125 of Cr.P.C. claiming maintenance
from the appellant. The appellant and the respondent had
entered into a marital knot about four decades back and for
more than two decades they were living separately. In the
application it was claimed by the respondent that she was
unemployed and unable to maintain herself.

The object of the maintenance proceedings is not to punish a

person for his past neglect, but to prevent vagrancy by
compelling those who can provide support to those who are
unable to support themselves and who have a moral claim to
support.

The phrase unable to maintain herself would mean that means

available to the deserted wife while she was living with her
husband and would not take within itself the efforts made by
the wife a fter desertion to survive somehow.

Under the law the burden is placed in the first place upon the
wife to show that the means of her husband are sufficient.
There is no dispute that the appellant has the requisite means.
But there is an inseparable condition which has also to be
satisfied that the wife was unable to maintain herself.

These two conditions are in addition to the requirement that

the husband must have neglected or refused to maintain his
wife. The appellant has placed material to show that the
respondent/wife was earning some income. This is not sufficient
to rule out application of Section 125, it has to be established
that with the amount she earned the respondent-wife was able
to maintain herself.

Whether the deserted wife was unable to maintain herself, has

to be decided on the basis of the material placed on record.
Where the personal income of the wife is insufficient, she can
claim maintenance under Section 125.

CrPC P a g e 18 | 249
The test is whether the wife is in a position to maintain herself
in the way she was used to in the place of her husband. The
conclusions of Courts that respondent-wife unable to maintain
herself was factual and cannot be interfered with in absence of
perversity.

In Mohd. Ahmed Khan v. Shah Bano Begum, it is declared that a

Muslim husband having sufficient means must provide
maintenance to his divorced wife who is unable to maintain
herself. Such a wife is entitled to the maintenance even if she
refuses to live with the Muslim husband because he has
contracted another marriage within the limits of four wives
allowed to him by Quran.

The Bench of the Supreme Court declared that a Muslim

divorced woman who cannot maintain herself is entitled to
maintenance from her former husband till the time she gets
remarried.

They rejected the plea that maintenance is payable for the

iddat period only. Pointing to the ayats of the Quran, the judges
declared that the Quran imposes an obligation to provide
maintenance to the divorced wife.

The judges also rejected the contention that deferred Mahr

(dower) is a payment on the divorce of a wife and hence such
payment under the personal law excludes the payment of any
maintenance by the husband to the wife. They stated that Mahr
is an amount which the wife is entitled to receive from the
husband in consideration of the marriage. They observed that
according to Quran, the dower is a consideration and mark of
respect for the Muslim woman instead of being a consideration
for divorce.

The learned judges stated that the religion professed by a

spouse has no place in the scheme of Section 125 of the Code
of Criminal Procedure which is a measure of social justice
founded on an individual's obligation to the society to prevent
vagrancy and destitution.

The Supreme Court has held that if there is any conflict

between personal law and Section 125 of the Code, then it is
CrPC P a g e 19 | 249
clear from the language of Section 125 that it overrules the
personal law. This judgment created a storm and priest of Islam
started agitation. Then the Central Government enacted the
Muslim Women (Protection of Rights on Divorce) Act, 1986.
The divorced Muslim wife's claims are now to be governed by
this Act. It is possible for the Muslim spouses to opt to be
governed by the provisions of the Code of Criminal Procedure
by virtue of a provision in that Act.

According to that Act, a divorced Muslim wife whose relatives

are incapable of maintaining her as required under her personal
law can straight away apply to the State Wakf Board for
maintenance.

Since the Muslim Women (Protection of Rights on Divorce) Act,

1986 does not contain any provision excluding application of
the Family Courts Act a claim for maintenance even by a
divorced Muslim woman under Chapter IX (Sections 125 to 128)
of the Code of Criminal Procedure shall be to the Family Court.

The Code of Criminal Procedure must override his personal law

if it conflicts with it. A proceeding under Sections 24 and 25 of
the Hindu Marriage Act, 1955 could not operate as a bar to a
proceeding under Section 125 of the Code. In the same way
Section 18 or 20 of the Hindu Adoption and Maintenance Act,
1956 does not override the provisions of relief of Section 125 of
the Code.

he Hon'ble Supreme Court in a path breaking judgment

Chanmuniya Vs. Chanmuniya Virendra Kumar Singh Kushwaha
and Anr1 held that "Where partners lived together for a long
spell as husband and wife, a presumption would arise in favour
of a valid wedlock".
2. Child:
According to Section 125(1)(b) of the Code of Criminal
Procedure, if any person having sufficient means neglects or
refuses to maintain his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself or as per
Section 125(1)(c) of the Code, his legitimate or illegitimate
child (not being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, a Magistrate of
CrPC P a g e 20 | 249
the first class may, upon proof of such neglect or refusal, order
such person to make a monthly allowance for the maintenance
of such child, at such monthly rate, as such Magistrate thinks
fit, and to pay the same to such person as the Magistrate may
from time to time direct.

However, the Magistrate may order the father of a minor

female child referred to in Section 125(1)(b) to make such
allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means. Here 'minor'
means a person who, under the provisions of the Indian
Majority Act, 1875 is deemed not to have attained his majority.

A Muslim minor girl would be entitled to get maintenance from

her father even after the enforcement of Muslim Women
(Protection of Rights on Divorce) Act, 1986.
The word Child is not defined in the Code. It means a male or
female person who has not reached full age, i.e., 18 years as
prescribed by the Indian Majority Act, 1875 and who is
incompetent to enter into any contract or to enforce any claim
under the law.

3. Father or mother:
According to Section 125(l)(d) of the Code of Criminal
Procedure, if any person having sufficient means neglects or
refuses to maintain his father or mother, unable to maintain
himself or herself, a Magistrate of the first class may, upon
proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his father or mother,
at such monthly rate, as such Magistrate thinks fit, and to pay
the same to such person as the Magistrate may from time to
time direct.

The daughter whether married or unmarried would also be

liable to maintain the parents as the Indian society casts a duty
on the children to maintain the parents and this social
obligation equally applies to a daughter.

Section 125 of the Code does not clearly state whether 'father'
or 'mother' include 'adoptive father' or 'adoptive mother' or
'stepfather' or 'stepmother'. According to Section 3(20) of the
CrPC P a g e 21 | 249
General Clauses Act, 1897, the word 'father' shall include an
'adoptive father', and though the term 'mother' has not been
similarly defined, it has been held that the term 'mother'
includes adoptive mother.

Though the 'mother' shall not include 'stepmother', a childless

stepmother may claim maintenance, under Section 125 of the
Code, from her stepson provided she is a widow or her
husband, if living, is also incapable of supporting and
maintaining her and if has natural born sons and daughters and
her husband is alive and capable of earning, she cannot claim
maintenance from her stepson.

If there are two or more children the parents may seek the
remedy against anyone or more of them, at place or places
where they live.

As per Section 125(1) of the Code, only a husband or a father or

a son or a daughter, as the case may be, to pay maintenance
to the respective persons, namely, wife, child, father or mother,
under certain circumstances. Section 125 does not contemplate
the mother to pay maintenance to father or son and daughter,
as the case may be.

Interim maintenance:
As per second proviso to Section 125(1) of the Code of Criminal
Procedure, during the pendency of the proceeding regarding
monthly allowance for the maintenance under Section 125(1) of
the Code, order such person to make a monthly allowance for
the interim maintenance of his wife or such child, father or
mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same to such
person as the Magistrate may from time to time direct.

Further, an application for the monthly allowance for the

interim maintenance and expenses for proceeding under the
second proviso shall, as far as possible, be disposed of within
sixty days from the date of the service of notice of the
application to such person.

Essential conditions for granting maintenance:

i. Sufficient means to maintain:
CrPC P a g e 22 | 249
According to Section 125(1) of the Code of Criminal Procedure,
the person from whom maintenance is claimed must have
sufficient means to maintain the person or persons claiming
maintenance. Here, the expression 'means' does not signify
only visible means such as real property or definite
employment.

If a man is healthy and able-bodied, he must be held to possess

the means such as real property or definite employment. The
words 'sufficient means' should not be confined to the actual
pecuniary resources but should have reference to the earning
capacity.

Earning capacity or ability to earn requires something more

than a fit state of mind or body. It requires opportunity to earn,
education or experience and many a time finance, push and
full. If a person is healthy and able-bodied, he must be held to
have the means to support his wife, children and parents.
Capability of a person to pay must be proved to fix the
quantum of maintenance.

ii. Neglect or refusal to maintain:

As per Section 125(1) of the Code of Criminal Procedure, the
person from whom maintenance is claimed must have
neglected or refused to maintain the person or persons entitled
to claim maintenance.

Neglect means a default or omission in the absence of a

demand whereas 'refuse' means a failure to maintain or a
denial of obligation to maintain after demand. A neglect or
refusal to maintain may be by words or by conduct. It may be
expressed or implied. Neglect or refusal may mean something
more than mere failure or omission. Burden of proving neglect
is on the claimant.

The expression wilful negligence is a question of law though it

has to be decided on given facts. 'Wilful' means designedly,
deliberately of set purpose, that is to say, the mind and the
overt action moving together.

CrPC P a g e 23 | 249
When there is duty to maintain, mere failure or omission may
amount to neglect or refusal. Maintenance means appropriate
food, clothing and lodging.

iii. Person claiming maintenance must be unable to maintain

himself or herself:
As the object of Section 125 of the Code is mainly to prevent
vagrancy; the requirement to pay maintenance should be only
in respect of persons who are unable to maintain themselves.
The inability of the wife to maintain herself is a condition
precedent to the maintainability of her application for
maintenance.

As per Section 125(1) (a) of the Code, maintenance to a wife

can be granted when she is unable to maintain herself.
Maintenance means appropriate food, clothing and lodging. By
the phrase 'unable to maintain herself', it is not meant that she
should be absolutely destitute and should be on the street,
should beg and be in tattered clothes.

The maintenance has to be determined in the light of the

standard of living of the person concerned. The amount of
maintenance should be such that the woman should be in a
position to maintain herself and that it should not be much
below the status which she was used to at the place of her
husband.

The wife need not specifically plead that she is unable to

maintain herself. The wife who is hale and healthy and is
adequately educated to earn for herself but refuses to earn and
claims maintenance from her husband is entitled to claim
maintenance but that her refusal to earn under the
circumstances would disentitle her to get full amount of
maintenance.

Special requirements where maintenance is claimed by

wife:
The wife must not be living in adultery:
As per Section 125(4) of the Code of Criminal Procedure, no
wife shall be entitled to receive an allowance for the
maintenance or the interim maintenance and expenses of
proceeding, as the case may be, from her husband under
Section 125 if she is living in adultery. The term living in
CrPC P a g e 24 | 249
adultery has been consistently held to mean an outright
adulterous conduct where the wife lives in a quasi-permanent
union with the man with whom she is committing adultery.

Wife must not refuse without sufficient reasons to live

with her husband:
According to' Section 125(4) of the Code of Criminal Procedure,
no wife shall be entitled to receive an allowance for the
maintenance from her husband, if she refuses to live with her
husband. Wife must not refuse to live with her husband without
sufficient reason to get maintenance. What could be considered
as a sufficient reason for the wife's refusal to live with her
husband would depend upon the facts and circumstances in
each case.

Civil Court's finding as to desertion by wife is binding on the

criminal Court hearing petition for maintenance. But, if the civil
Court comes to hold, while directing divorce, that the wife is not
entitled to maintenance, it would not deprive her of her right to
claim maintenance in a criminal Court though the criminal
Court has to consider the decision of the civil Court. In the
same way the civil Court's finding on a fact on which interim
maintenance is rejected by it is not binding on the criminal
Court.

As per explanation to Section 125(3) of the Code, if a husband

has contracted marriage with another woman or keeps a
mistress, it shall be considered to be a just ground for his wife's
refusal to live with him.

The wife must not be living separately by mutual consent:

As per Section 125(4) of the Code of Criminal Procedure, no
wife shall be entitled to receive an allowance for the
maintenance from her husband if they are living separately by
mutual consent.

A divorced wife cannot be characterised as a wife living

separately by mutual consent. A divorced wife is a person who
lives separately from her former husband by virtue of a change
in status consequent upon the dissolution of the marriage.

A divorce decree by mutual consent to live separately cannot

disentitle the wife to claim maintenance. The concept of living
CrPC P a g e 25 | 249
separately by mutual consent arises so long as the marriage
subsists and the parties agree to live separately by consent.
Where the marital relations have been terminated by an
agreement, the wife would be entitled to claim maintenance
from her ex-husband so long she remains unmarried and is
unable to maintain herself. However, in the case of divorce by
mutual consent if the wife had relinquished her right to
maintenance, she cannot later claim maintenance.

DNA Test for determination of paternity cannot be

directed in a petition under Section 125.
In a proceeding under Section 125 of Cr.P.C. the Magistrate was
not justified in directing DNA tests of the child to determine
paternity.

On failure to pay maintenance detention in prison could not

exceed one month:
A warrant has to be issued under Section 125 (3) of the Code
for payment of maintenance, when an application is made by
the person who has been held entitled to maintenance under
Section 125 of the Code.

When such a warrant is issued for making payment of

maintenance, it has to be levied as the amount due in the
manner provided for levying fines and if this warrant is not
responded by making the payment, then the Magistrate can
order imprisonment and the imprisonment in no case can
exceed one month. Therefore, it is immaterial whether there
were arrears of twelve months or of any other duration.

What is bail ? When bail may be granted in non-bailable

offence ?

What is a bail
The term ‘bail’ has been derived from the French word ‘bailer’,
which means ‘to give.’ While the term ‘bail’ has not been
defined in the Code of Criminal Procedure, 1973, it can be
defined as a type of security paid for guaranteeing the
appearance of the accused, on the giving of which he is
released temporarily. This is granted when there is a pending
trial or investigation. He can be asked to appear in court
whenever it is required and the bail guarantees this
CrPC P a g e 26 | 249
appearance. The objective behind providing bail is to provide
liberty to the accused as the investigation or trial is pending
and he has not yet proven to be an offender. Provisions as to
bail and bonds are contained in Chapter XXXIII of the CrPC from
Sections 436-450.

The Code of Criminal Procedure has classified offences into

three categories: cognizable and non-cognizable, bailable and
non-bailable, and compoundable and non-compoundable.

Now, let us jump into the core topic, which is non-bailable

offences.

Non-bailable offences
Non-bailable offences are those offences for which bail cannot
be granted. Hence, if a person has been booked for a non-
bailable offence, he cannot claim bail as a right. Section 2(a) of
the Code of Criminal Procedure provides that non-bailable
offences are those offences which are not bailable as per the
First Schedule of the Code.

Now, let us look at all the 30 offences that have been listed as
non-bailable offences.

List of non-bailable offences:

Section Offence Punishment

Waging or attempting or
abetting the waging of war Imprisonment for life or up
121
against the Government of to 10 years with a fine.
India.

Imprisonment for life along

with a fine or it could be
124A Sedition imprisonment for 3 years
along with a fine or simply
just a fine.

Abetting mutiny or
Imprisonment for life or 10
131 attempting to seduce a
years along with a fine.
soldier, sailor, or airman.

172 Absconding to avoid Imprisonment for 1 month

CrPC P a g e 27 | 249
 service of summons. or a fine of Rs. 1000.

Life imprisonment or
232 Counterfeiting Indian coins. imprisonment for 10 years
along with a fine.

Life imprisonment or
Import or export of
238 imprisonment for 10 years
counterfeiting Indian coins.
along with a fine.

Fraudulently diminishing Imprisonment for 3 years

246
the weight of the coin. along with a fine..

Counterfeiting of Imprisonment for 3 years

255
government stamps. along with a fine.

Imprisonment for 6 months

274 Adulteration of drugs. along with a fine of Rs.
1000.

A deliberate and malicious

act intended to outrage the
Imprisonment for 3 years
295A religious feelings of any
along with a fine.
class by insulting their
religious beliefs.

Life imprisonment or the

302 Punishment for murder
death penalty.

Punishment for culpable

Imprisonment for 10 years
304 homicide not amounting to
with a fine.
murder.

Imprisonment for 7 years

304B Dowry death
up to life term.

Imprisonment for 10 years

306 Abetment of suicide.
with a fine.

Imprisonment for 10 years

307 Attempt to murder.
along with a fine.

Attempt to commit
Imprisonment for 3-7 years
308 culpable homicide not
along with a fine
amounting to murder.

369 Abduction of a child under Imprisonment for 7 months

CrPC P a g e 28 | 249
 the age of 10. or a fine

Imprisonment for 7 to 10
370 Trafficking of person
years or with a fine.

Rigorous imprisonment for

376 Punishment for rape
life or not less than 7 years

Imprisonment for 20 years,

376D Gangrape which may be extended till
life.

Imprisonment for 10 years,

377 Unnatural offences which may be extended till
life.

Imprisonment for 3 years

379 Punishment for theft.
and fine.

384 Punishment for extortion. Imprisonment for 4 years.

Imprisonment for 3 years

392 Punishment for robbery.
along with a fine.

Imprisonment for 10 years

395 Punishment for dacoity.
and a fine.

Punishment for criminal Imprisonment for 3 years

406
breach of trust. and a fine.

Dishonestly receiving Imprisonment for 3 years

411
stolen property. and a fine.

Cheating and dishonestly

Imprisonment for 7 years
420 inducing delivery of
and a fine.
property.

Counterfeiting currency Imprisonment for life and a

489A
notes or banknotes. fine.

Husband or his relatives of

Imprisonment for 3 years
498A a woman subjecting her to
and a fine.
cruelty.

CrPC P a g e 29 | 249
Differences between bailable offences and non-bailable
offences
Basis of
differentiatio Bailable offence Non-bailable offence
n

As per the definition of

Section 2(a), a bailable A non-bailable offence is
offence is any an offence described by Section 2(a)
Definition
which is shown as as any offence other than a
bailable in the First bailable one.
Schedule

Bailable offences are Non-bailable offences are

Nature relatively less serious in relatively more serious in
nature. nature.

Most bailable offences

For a non-bailable offence,
prescribe a punishment of
Punishment the punishment can extend
imprisonment that is for 3
up to life imprisonment.
years or less.

CrPC P a g e 30 | 249
 In bailable offences, bail
On the other hand, when a
is to be claimed as a right
person is accused of
and not as a benefit or a
committing a non-bailable
privilege. Section 436 of
offence, that person loses
the Code states that bail
the right to claim bail. In
can be claimed as a right
such offences, the grant of
by a person accused of a
Bail as a right bail becomes a matter of
bailable offence, at any
the discretion of the
stage of the proceedings.
magistrate or the police
When bail is claimed for
officer. For such offences,
bailable offences, the
bail can only be granted in
police officer or the
some exceptional
magistrate has no
circumstances.
discretion to refuse it.

How is bail granted for a non-bailable offence

Section 437 of the Criminal Procedure Code lays down the
provision for granting bail for non-bailable offences. The
following are the provisions for bail in a non-bailable offence:
 The granting of bail for non-bailable offences is totally at
the discretion of the court or the concerned police officer.
 When a person accused of a non-bailable offence is
arrested or detained without a warrant, he may be granted
bail by the police officer in charge of the concerned police
station. However, there are some restrictions to this
power. Under any of the following circumstances, the
police officer cannot grant bail to such a person:
1. There are reasonable grounds for believing that he is
guilty of committing an offence that prescribes a
punishment of death or life imprisonment.
2. The offence is cognizable and there has been a previous
conviction for an offence punishable with death, life
imprisonment, or imprisonment for at least 7 years.
3. If there have been two or more convictions of the accused
for a cognizable offence, that prescribes a punishment of
imprisonment of 3 years to 7 years.

CrPC P a g e 31 | 249
 Once a police officer has granted this bail, he must record
the reasoning behind it and the same shall be mentioned
in the case diary.
 When a person who has been accused of committing a
non-bailable offence appears before the judicial
magistrate or is brought before him, the judicial
magistrate can exercise discretion in granting him bail.
However, the magistrate cannot exercise this power in any
of the following circumstances:
1. There are reasonable grounds for believing that he is
guilty of committing an offence that prescribes a
punishment of death or life imprisonment.
2. The offence is cognizable and there has been a previous
conviction for an offence punishable with death, life
imprisonment, or imprisonment for at least 7 years.
3. If there have been two or more convictions of the accused
for a cognizable offence that prescribes a punishment of
imprisonment of 3 years to 7 years.
 Though there are restrictions to this discretionary power
as mentioned above, the police officer or the judicial
magistrate may grant bail to the accused if the accused is
a woman, a person under the age of 16, or a person who
is sick or infirm. Hence, in such cases, the restrictions in
points a, b, and c will not be applied.
 In the situations mentioned in points b and c, the officer or
the magistrate may still grant bail if there is any special
reason for doing so.
 While releasing a person on bail, the officer or the
magistrate must record the reasons or any special reason
for doing so in writing.
 The mere fact that an accused has to be identified by
witnesses during the investigation process does not
disqualify him from being granted bail if he is entitled to
bail otherwise.
 If the offence that the accused is alleged to have
committed is punishable with death, life imprisonment, or
imprisonment for 7 years or more, then the public
prosecutor must be given an opportunity of hearing in
order to grant bail to the accused.
 If at any stage of the case, whether it is during the
investigation, enquiry or trial, the police officer or the
magistrate finds that there are no reasonable grounds for
CrPC P a g e 32 | 249
 believing that the accused has committed a non-bailable
offence, then the accused shall be granted bail. On doing
so, the reasons or special reasons must be written and
recorded.
 The trial of such an offence should ideally conclude within
60 days from the first date which was fixed for taking
evidence. If not, the accused person must be mandatorily
released on bail if he was in custody. If he is not released,
the officer or the magistrate must record the reasons for
doing so.
 A bail granted to an accused can be subsequently
cancelled and the accused shall be re-arrested on the
satisfying of any of the following conditions:

1. Commission of the same offence by the accused.

2. Hampering of the investigation process by the accused.
3. Tampering of evidence by the accused, whether it is
through intimidating prosecution witnesses or by
eliminating the evidence of the commission of the crime.
4. Violation of any of the conditions imposed by the court
while granting bail.
Now that we know the procedure to get bail for a non-bailable
offence, let us look at how bail can be sought by a person who
fears arrest on the charge of a non-bailable offence.
In Nethra v. State of Karnataka (2022), the Karnataka High
Court held that if the applicant is a woman, she can be granted
bail for a non-bailable offence even if it is punishable with life
imprisonment or the death penalty.
In the case of Mara Manohar v. State of Andhra Pradesh (2022),
it was held that once there has been considerable progress in
the investigation of a case, a bail with conditions may be
granted.

Anticipatory bail for a non-bailable offence

Section 438 of the Code lays down the procedure for granting
bail to a person with the apprehension of arrest on the charge
of a non-bailable offence. This type of bail is called ‘anticipatory
bail’. This allows a person to protect himself from getting
arrested for a non-bailable offence when he has a reasonable
apprehension of being accused of the same. One cannot seek
anticipatory bail on the apprehension of being accused of a
bailable offence as receiving bail with respect to such offences
CrPC P a g e 33 | 249
is far easier. The following are the provisions under Section
438:
 Anticipatory bail can be granted by the High Court or the
Court of Sessions.
 It directs the police officer to release the accused on bail
upon his arrest.

The factors the court must consider while granting

anticipatory bail are the following:
1. Nature and gravity of the accusation.
2. Whether the applicant has been previously convicted or
imprisoned for any cognizable offence.
3. Whether the accused is likely to avoid facing justice.
4. Whether the accusation was made with the motive to
injure the applicant or to tarnish his reputation by getting
him arrested.
 The court can either reject the application for anticipatory
bail or accept it and issue an interim order to grant the
same.
 If there is no issuing of the interim order, the police officer
can arrest the applicant without a warrant for the charge
apprehended.
 Once the interim order is granted, a notice shall be sent,
along with the order’s copy, to the public prosecutor and
the superintendent of police so as to provide them with a
reasonable opportunity to be heard during the hearing.
The public prosecutor can also apply for the presence of
the applicant, and if it is deemed necessary for the
interest of justice, his appearance shall be made
obligatory.
The following are some of the conditions that can be
imposed by the courts while granting anticipatory bail:
1. Availability for police interrogation.
2. No direct or indirect threat, promise, or inducement to
anyone acquainted with the facts of the case in order to
convince or persuade such a person to not disclose such
facts to the court or the police.
3. Not leaving India without taking the court’s permission.
4. Any other conditions in the interest of justice.

It is clear that anticipatory bail is granted only in exceptional

circumstances and not in general cases. The object of granting
CrPC P a g e 34 | 249
anticipatory bail is to save an innocent person from the
apprehension and shame that comes from arrest.

Once the arrest happens, the right to apply for anticipatory bail
ceases to exist. One can make the application even after an FIR
has been filed, provided that the arrest has not been made.
Filing of an FIR is not a prerequisite for applying for anticipatory
bail. However, there must be a reasonable apprehension of
arrest on the charge of a cognizable and non-bailable offence.
While granting anticipatory bail, a person’s status and financial
background are irrelevant. However, the allegations must
indicate a falsehood.

In the case of Adri Dharam v. State of West Bengal (2005), it

was held that when a person gets arrested, if he possesses the
order of anticipatory bail, he shall be released immediately.

The applicant in the case of Narayan Ghosh alias Nantu v. State

of Orissa (2009) was charged with criminal conspiracy and
applied for anticipatory bail. He was very financially and
politically influential and had the capacity to influence
witnesses. There was also a possibility that the accused might
flee. These factors led the court to reject the bail of the
accused.

In the case of Gopinath v. State of Kerala (1986), it was held

that an application for anticipatory bail can be submitted to the
High Court even if it has been previously made before the
Sessions Court on the same grounds and rejected. Hence, a
fresh application can be made before the High Court even
though it has been rejected by the Sessions Court.

In the case of Bholai Mistry And Anr. v. The State (1976), once
anticipatory bail has been granted by the High Court, only the
High Court can cancel the bail and not the Sessions Court.

Conclusion
To sum up, bail is not a right for non-bailable offences. There
are provisions of the Code, namely Sections 437 and 438, that
merely provide the grounds under which the court or the police
“may” grant bail. By ensuring that for comparatively less
serious offences, bail is granted as a right and for more serious
CrPC P a g e 35 | 249
offences, bail is a matter of discretion, the Code of Criminal
Procedure strikes a balance between the protection of safety
and the interests of the public and the individual liberty of
persons accused of offences.

While granting bail for non-bailable offences, the court looks

into a number of factors to ensure that such a grant of bail will
not impact the service of justice. Moreover, the Code also
permits the attachment of conditions along with bail, and on
the breach of any such condition, the bail is revoked.

Analyse the provisions relating to arrest of persons

under the Cr.P.C.
The word arrest is derived from the French word 'arret'
meaning 'to stop or stay'.
The term 'arrest' means the apprehension of a person by the
legal authority so as to cause deprivation of liberty.

An arrest is an act of apprehending and bringing a person into

custody (legal protection or control), typically because the
individual is suspected of or has been observed committing a
crime. Various provisions regarding the arrest of an individual
by various individuals have been provided under the Code of
Criminal Procedures by the Law, these provisions are discussed
in the following sections.

Provision Related to Arrest under CrPC

Chapter V of the Code of Criminal Procedure, 1973 deals with
the arrest of persons under Sections 41 to Section 60. The
essential object of criminal law is to protect society from
criminals and from law-breakers.
The arrest is usually made in criminal cases and in civil matters,
it is looked upon as the last option. Based upon the
employment of warrant issued by a magistrate, Arrest is of two
types: an arrest made in view of a warrant issued by a
magistrate and an arrest made without such a warrant but in
accordance with some legal provision permitting such an arrest
as under sec 41, 42 and 151 of CrPC.
The basic procedure to make an arrest has been mentioned
under section 46 of the Code of Criminal Procedure, 1973. Sub-
section 1 of this section provides that the arresting authority
has to actually touch or confine the body of the person to be
CrPC P a g e 36 | 249
arrested, and also there can be submitted to custody by words
or actions.

For instance, if a person, himself walks to the police station and

surrenders, he will be considered under an arrest. Further sub-
section 2 says that if a person forcibly resists the arresting
authority and attempts to evade the arrest, the arresting
authority has the power to use all such means to prevent such
an escape.

Regulating sub-section 2, sub-section 3 provides that the

provisions of the preceding sub-sections give the arresting
authority right to cause the death of a person who is not
accused of an offense punishable with death or life
imprisonment.

Not only policemen but various other authorities have

the powers to arrest an individual according to various
provisions of CrPC, including:
 A police officer with or without a warrant, or
 A private person, or
 A magistrate

Arrest by a Police officer

The police officers have been authorized to arrest any person
without the warrant ordered by the court under Sections 41, 42,
151 of CrPC. Section 41 of CrPC provides for those instances
where a police officer has been authorized to arrest an
individual without a warrant from the magistrate.
This happens when the individual is:
1. Involved in any cognizable offense such as murder, rape,
kidnapping, theft, etc. or
2. In possession, without, lawful excuse, of any
housebreaking weapon or
3. Proclaimed as an offender either under CrPC or by order of
the State Govt. or
4. In possession of any stolen property or
5. Obstructing a police officer while in the execution of his
duty or who has escaped, or attempts to escape, from
lawful custody
6. Reasonably suspected of being a deserter from any of the
Armed forces of the Union
CrPC P a g e 37 | 249
 7. Concerned with any law relating to extradition
8. Involved in breach of any rule made under sub-section (5)
of Section 356 CrPC
9. The one whose arrest's requisition has been received from
another police officer specifying the person to be arrested
and the offense and other cause for which the arrest is to
be made.

Section 42 specifies yet another situation where a police officer

can arrest a person. According to this section, if a person
commits an offense in the presence of a police officer or where
he has been accused of committing a non-cognizable offense
and refuses, on demand being made by a police officer to give
his name and residence or gives false name or residence, such
person may be arrested but such arrest shall be only for the
limited purpose of ascertaining his name and residence.

After such ascertaining, he shall be released on executing a

bond with or without sureties, to appear before a magistrate if
so required. In case the name and residence of such person
cannot be ascertained within 24 hours from the date of arrest
or if such person fails to execute a bond as required, he shall be
forwarded to the nearest magistrate having jurisdiction.

Also, Section 151 of The CrPC, 1973 provides for the arrest of a
person who is suspected to commit any cognizable offense by
the police officer without a warrant from the magistrate, if the
police officer finds no other way of preventing the execution of
such offense. A person arrested under this section can be
detained for more than 24 hours from the time of arrest unless
such extended detention is required under provisions of CrPC.

Arrest Made by Magistrate

Section 44 of CrPC provides for the provision of an arrest made
by a magistrate. The sub-section 1 of this section provides that
when an offense is committed in the presence of the magistrate
within his jurisdiction, he may himself arrest or order someone
to arrest the offender and may commit the offender to custody.
Under sub-section 2 the magistrate can arrest or order for the

CrPC P a g e 38 | 249
arrest of a person for whose arrest he is competent to issue a
warrant.

Under sub-section (1) of Code of Criminal Procedure, 1973 the

Magistrate has been given the power to arrest a person who
has committed an offense in his presence and also to commit
him to custody, while under sub-section (2) of Section 44 Cr. P.
C the Magistrate has full power to arrest a person suspected of
having committed an offense but has not been given any power
to commit him to custody.

Further, Section 107 of CrPC provides the power to the

Executive Magistrate who has received information for arresting
a person who is likely to commit a breach of the peace or
disturb public tranquillity in any way, to show cause why he
should not be ordered to execute a bond with or without
sureties for keeping the peace for such period, not exceeding
one year, as the Magistrate thinks fit.

Arrest by Private Persons

Section 43 of CrPC provides the procedure for arrests made by
private individuals. This section gives the right to a private
person to arrest on the individual, who in his/her presence,
commits a cognizable or a non-bailable offense or who is a
'proclaimed offender' The private person can arrest such an
offender to hand over his custody to the nearest police station
and if the police officer finds such person coming under the
provisions of section 41, the police officer has to re-arrest the
offender.

Provision for Members of Central Armed Forces

Section 45 of CrPC exempts the members of the Armed forces
from being arrested for anything done by them in the discharge
of their official duties except after obtaining the consent of the
government. Sub-section 1 of this section provides that
sections 41 to 44 of CrPC would not be applicable on members
of armed forces of the union and they cannot be arrested for
anything done by them during the discharge of their official
duty, but they can be arrested after taking consent of the
central government. If a member of Armed Forces of the union
has been conferred with a responsibility to maintain public
order in a specific state or region, then the state government of
CrPC P a g e 39 | 249
the state where the members are deployed may make the
provisions of section 45(1) applicable, just like the Central
Government does, for such members of Armed forces.

Special Provision Regarding Arrest of Females

Women have been given some special privileges which have to
be necessarily followed while carrying out their arrest.
The general rule is that Females are not be arrested without the
presence of a lady constable and further no female is arrested
after sun-set. But there is an exception in those cases where
crime is very heinous and arrest is important as in these cases
arrest can be made upon special orders based on the facts of
such cases. Separate lock-ups are to be provided to women.

Additionally, section 53 sub-section 2 of CrPC provides that only

registered female medical practitioners have to be appointed
for medically examining female accused.

D.K. Basu's Case and Rights of Arrested Person

In 1996, a landmark judgment was passed in the D.K. Basu v.
State of West Bengal case, provided for certain guidelines
which were to be necessarily followed in all cases of arrest and
detention. This case additionally discussed certain rights which
have been provided to the arrested or detained person. This
was done so as to eliminate the incidences of police
aristocracies and cases of custodial deaths.
Some of the important points which were held by the
court while deciding upon this case have been listed
below:

Right to be informed:
As Per Section 50 of the Criminal Procedure Code and Article 22
of the Indian Constitution which provides certain rights to
detained persons, the right to be informed about the grounds
for arrest is a basic right. It is the police officer's responsibility
to notify and tell the arrested person whether the offense is
bailable or not.

Essentials of a warrant:
In non-cognizable offenses, an arrest is made with a warrant,
and the arrested person has the right to read the warrant under
Section 75 of the CrPC.

CrPC P a g e 40 | 249
A warrant of arrest must satisfy specific conditions, including
being in writing, signed by the presiding officer, and bearing
the seal of the court, as well as the accused's name and
address and the offense for which the arrest is made. If any of
these are absent, the warrant is invalid and illegal.

Memo of Arrest:
The police officer must wear a distinct and legible identification
allowing for simple recognition. At the moment of arrest, a
memo of arrest must be written, which must be certified by at
least one witness, who might be a family member or a member
of the local area where the arrest is made and countersigned by
the detained individual.

Right to choose an advocate:

Under section 41D and section 303 CrPC, the arrested person
has been given a right to meet an advocate of his choice during
the course of interrogation.

Right to Inform Relative:

Under section 50 of CrPC, an arrested person has a right to
inform a family member, relative, or friend about his/her arrest.

Right to be not Detained more than 24 Hours:

To avoid illegal arrests, arrested persons have the right not to
be kept for more than 24 hours without being produced before
a magistrate. It is a basic right conferred by Article 22 of the
Indian Constitution and backed by Sections 57 and 76 of the
CrPC.

Right to be Medically Examined:

Under Section 55A and 54 of CrPC, an Arrested person has been
given the right to be medically examined by a medical officer
when he is produced before a magistrate or at any time while in
custody, with a view to establishing that the offense with which
he is charged was not committed by him or that he was
subjected to physical torture.

Right to Remain Silent:

Under Section 20(3) of the Indian Constitution, an arrested
individual has the right to remain silent, so that the arresting

CrPC P a g e 41 | 249
authority cannot elicit self-incriminating statements from him
against his will or without his agreement.

Conclusion
Various provisions have been laid down under CrPC and Indian
Constitution in order to ensure smooth functioning and to
prevent any sort of bewilderment while carrying out the arrest
of any individual. Responsively, various rights have been
granted to the arrested persons so as to ensure that they are
not subjected to any sort of exploitation by the arresting
authority. Thus, the law has emphasized both the arrested and
the arrestee.

Discuss the powers of the court to transfer cases under

the
Cr.P.C.
Transfer of cases and appeals by SC
Section 406 of the Code of Criminal Procedure confers the
power upon the Supreme Court to transfer cases and appeals.
The Code grants the widest discretionary powers to the
Supreme Court to transfer any case or appeal lying before the
High Court to any other High Court of any state in the country
in order to meet the ends of justice and fulfil the principle of
natural justice. The application requesting the transfer of any
case or appeal pending before the High Court can be moved to
the Supreme Court by any of the following persons:

 Who is under the apprehension of unfair trial by the court;

or
 Who is unable to find any proper justice being served to
himself; or
 Attorney General or Advocate General of India.
The power granted by the Code under Section 406 to the
Supreme Court is purely discretionary in nature and the
applicant is under no obligation to conclusively establish that in
case the transfer does not take place then fair justice will not
take place and the applicant is only expected to reasonably
substantiate the contentions made by him under the
application he has submitted to the Supreme Court. The
application under Section 406 of the Code is made by the
interested party should always be in the form of motion
supported by an affidavit or affirmation, except in the cases
CrPC P a g e 42 | 249
where the applicant is the advocate general or attorney general
of the country.
The power of the Supreme Court to transfer the cases and
appeals also extends to the transfer the cases from any
subordinate court in the country where any matter is pending.
However, the court where the case is pending can ensure that
the Supreme Court, while transferring the case is taking all the
measures to uphold fairness and principles of natural justice.
The parties in any suit are always guaranteed the opportunity
to bring to the notice of any court with appropriate jurisdiction
that there are reasonable grounds which uphold the
apprehension in the mind of the person that certain factors
inhibit his right to a fair trial.

In Vishwanath Gupta v. State of Uttar Pradesh, the applicant

filed an application for the transfer of a case on the contention
that he was under the apprehension that he wouldn’t be able to
engage a counsel in the court where a case against him was
already pending in the case. However, the District Bar
Association submitted an application assuring the court that a
defence counsel from among the members of the Bar
Association would be made available to the applicant. The
Supreme Court held the application to be invalid dismissing the
prayer for the transfer.

In Sukhdev Singh Sodhi vs The Chief Justice And Judges of

The PEPSU High Court, the court held that the power of
transferring of cases with the Supreme Court does not extend
to transfer of any contempt proceeding which is pending before
the High Court.
The power of transfer of cases and appeals is not only
discretionary but is also limited as Section 406 does not clothe
the Supreme Court with the power to transfer investigation
pending before one police station to another for the only reason
being the forwarding of FIR to the court. In cases where the
Supreme Court is of the opinion that the application made is
frivolous in nature and is devoid of any substantial claim then it
may order the party which came up with the application to pay
compensation of not more than one thousand rupees to the
party which opposed such application.
In Kaushalya Devi v. Mool Raj, the Supreme Court held that in
cases where the application of transfer of the case is made but
CrPC P a g e 43 | 249
the Magistrate dealing with the case opposes the application by
himself filing an affidavit then the transfer of the case, without
any doubt in the complete interest of justice because in all such
cases the essentials of fair and impartial trial are already put to
peril which is signified by the personal involvement of the judge
himself.
Grounds for transfer of appeal and cases
 To uphold the spirit of justice: The ultimate goal of any
judicial system on the earth is the deliverance of justice
and protection of the rights of every person. The courts
are highly revered institutions of justice with people
having high expectations of justice which is sought after
by the aggrieved party. Therefore, the court is under high
moral obligations for keeping the machinery of justice,
equity and good conscience alive.
 Recommendations made by the superior judicial
officers: The courts while deciding whether to transfer
the cases and appeals from one court to another takes
into consideration the inquiries and findings as revealed
by the reports carried on by the senior judicial officers
such as Chief judicial magistrate or any sessions judge.
 Upon request by the trial court: Where the court
before which the matter is pending deems the case to be
outside its scope of jurisdiction due to involvement of a
substantial question of law which is outside its purview. It
may request the higher judiciary to transfer the case.
 Lack of complete jurisdiction: In certain cases, the
court has limited jurisdiction over the subject matter of
the case before it. In such cases of shared or limited
juridical issues, the court trying the case has the liberty of
transferring the case to the court which possesses the
conclusive jurisdiction of trying the matter. This process
ensures that complete justice has been done to the parties
before the court.
 Differences between the party and the judicial
officer: In circumstances where there is already a
presence of differences between the judicial officer and
any of the party the chances of an unfair and partial trial
being carried out are relatively higher. Therefore, the party
apprehending such consequences of carrying on of the
trial is granted the opportunity by the judicial system to
apply for transfer of the case.
CrPC P a g e 44 | 249
  Infringement of principles of natural justice: Where
the proof of continued contravention of the principles of
natural justice by any court or judicial officer is rendered
by a party to the Supreme Court, then in order to uphold
the principles of natural justice, the court may order the
transfer of the case.

The very purpose of Criminal law is the free and fair dispersal of
justice which is not influenced by any extraneous
considerations. Section 407 of the Code of Criminal Procedures
enables the party to seek for transfer of case anywhere within
the state while Section 406 of the Code enables the party to
seek transfer of the case anywhere in the country.

Transfer of cases and appeals by HC

Section 407 of the Code of Criminal Procedure empowers the
High Courts to transfer cases and appeals.
Circumstances in which HC may order the transfer of a case or
appeal The High Court has the authority to transfer the cases
when it is satisfied that:
 The right to a fair and impartial trial which is guaranteed
under Article 21 of the Indian Constitution can not be
exercised by any of the party to the suit if the case is tried
by any of the courts which is subordinate to it;
 Certain questions pertaining to the present matter in the
court are of unusual difficulty;
 The transfer of the appeal or the case is made inevitable
by any of the provisions under the Code;
 The order of transfer will be in the interest of the general
convenience of the parties or witnesses involved in the
suit.

Orders that the High Court can pass

The High Court on being satisfied with the presence of the
above-mentioned grounds can order any of the following:
 The offence which is inquired into or tried by any Court
subordinate to it be inquired by any other court which is
inclusively under both Section 177 and Section 185 of the
Code is not qualified but is otherwise competent to inquire
into or try offences like the ones which are in question;
 Where a particular case or appeal is pending before any
criminal court which is subordinate to it to any other
CrPC P a g e 45 | 249
 criminal court which is having equal or superior
jurisdiction in comparison to the High Court;
 The particular case be laid down before the court of
Sessions for hearing;
 The particular case or appeal be laid down before the High
Court itself.
At whose instance the powers of transfer are exercised
The High Court exercises its power of transfer of cases at the
following instances:
 When the lower court submits the report for transfer of an
appeal or case to the High Court;
 Where the interested party lays before the High Court, an
application requesting the transfer of a case or appeal;
 The High Court in its own discretion can transfer a case or
appeal if it is satisfied with the fact that it would be in the
best interest of the parties to the suit.

However, the High Court while transferring a case must be

mindful of the fact that no application of transfer of the case
from one criminal court to another is made in the same
sessions division unless an application for the transfer of the
case has been made to the sessions court and the same has
been rejected by him.

Procedure to be followed
Subsection 3 to Subsection 5 of Section 407 of the Code of
Criminal Procedure lays down the procedure which has to be
followed by the person who is making the application for the
transfer of appeals and cases by him.
 Subsection 3 of Section 407 of the Code provides that the
application for the transfer of cases to the High Court by
the applicant shall be made by motion which shall be
supported by an affidavit or affirmation, except in the case
where the applicant is the Advocate General of the State;
 Subsection 4 of Section 407 of the Code provides that
where the application for the transfer of a case or an
appeal is made by an accused person, the High Court has
the authority to direct him to execute a bond with or
without surety for the payment of any compensation
which may be ordered to him by the court;
 Subsection 5 of Section 407 of the Code provides that
every person who makes an application for the transfer
CrPC P a g e 46 | 249
 shall give to the public prosecutor in writing, a notice to
notify his intention for making such an application. The
notice should be accompanied by the grounds on which
the application is made. This Section also instructs the
Courts not to make any order on the merits of the
application so submitted by the person, unless at least a
time period of twenty-four hours has elapsed between the
making of such a notice and hearing of the application.
Stay of proceeding to the subordinate court
Subsection 6 of Section 407 of the Code contains provisions
relating to the stay of proceedings which are going on in any
subordinate court. The provision states that where the
application for the transfer of cases from any subordinate court
is lying before the High Court. The High Court, may if it deems
fit in the interest of justice, stay the proceedings in the
subordinate court on such terms which it finds appropriate.
However, if such an order is made by the High Court, it should
not have any impact on the sessions court’s power to remand
which is guaranteed to it by Section 309 of the Code.

Where the application is dismissed by the High Court

Subsection 7 of Section 407 of the Code contains provisions
regarding the cases where the High Court dismisses the
application made to it under subsection 2 of Section 407 of the
Code. If the High Court finds that the application for the
transfer of appeal or case was vexatious and frivolous, it may
order the applicant to pay a compensation of an amount not
exceeding one thousand rupees to any person who had
opposed the application made by the applicant. The court in
such cases decided the compensation keeping in view, the
facts and circumstances of the case.

Saving
Subsection 9 of Section 407 of the Code is the saving clause
and it provides that nothing contained under Section 407 of the
Code shall have any effect on the orders which are passed by
the Government of India under Section 197 of the Code which
prevents the courts from taking cognizance of any case which
involves the criminal charges against any public servant unless
a previous sanction has been obtained by the court from the
competent authorities.

CrPC P a g e 47 | 249
Transfer of cases and appeals by the sessions judge
The Sessions judges are also conferred with the power to
transfer cases and appeals by the Code under Section 408.
 Subsection 1 of Section 408 provides that whenever a
Sessions Judge finds it expedient to transfer a case to
meet the ends of justice. He has the authority of
transferring such cases from one criminal court to another
criminal court within his sessions division;
 Subsection 2 of Section 408 provides the instances on
which the Sessions court can transfer the cases. The
Section provides that the authority to transfer the cases
with the Sessions Court can be exercised by it at the
instance of the report in this regard submitted to it by the
lower court, application in this regard submitted by the
interested party or the court may exercise the power at its
own discretion;
 The provisions under subsections (3), (4), (5), (6), (7) and
(9) of section 407 shall be made applicable to the Sessions
Judge while making any order in regards to the power
vested on it by Subsection 1 of Section 408 in the same
way as they are made applicable to the High Court while it
exercises the provisions mentioned under subsection 1 of
Section 407 of the Code.

Withdrawal of cases and appeals by Sessions Judges

Section 409 of the Code of Criminal Procedure contains
provisions regarding the power of the Sessions Court to
withdraw the cases and appeals.
 Subsection 1 of Section 409 provides that the Sessions
Judge, not only has the power to withdraw any case or
appeal but also has the power to recall any case or appeal
which he had earlier transferred to any Additional Sessions
Judge or Chief Judicial Magistrate who is subordinate to
him;
 Subsection 2 of Section 409 provides that the power of
recalling the cases by the Sessions Judge from any
Additional Sessions Judge can be exercised by him at any
time before the commencement of the trial of the case or
hearing of the appeal before the court of Additional
Sessions Judge;
 Subsection 3 of Section 409 provides the course of action
which can be followed by the Sessions Court if it exercises
CrPC P a g e 48 | 249
 the power vested on it by Subsection 1 and 2 of Section
409. Accordingly, after the recall of an appeal is made by
the Sessions Judge, he may either try the case or hear the
appeal on his own, or again transfer the case or the
appeal to some other court in accordance with the
provisions of the Code.

In Surendra Kumar vs Vijayan, the court held that the authority

of transferring such cases from one criminal court to another
criminal court within his sessions division conferred on the
Sessions Judge by Section 408(1) of the Code is an independent
judicial power and is not subject to any bar provided under
Subsection 2 of Section 409.

Withdrawal of cases by Judicial Magistrates

Section 410 of the Code of Criminal Procedure contains
provisions regarding the withdrawal of cases by Judicial
Magistrate. According to the Section:
 Subsection 1 of Section 410 of the Code grants the powers
to the Chief Judicial Magistrate to transfer any case from
any Magistrate subordinate to him as well as the power to
recall any case which he had earlier transferred to any
Magistrate subordinate to him. When the Chief Judicial
Magistrate recalls a case, he has the authority to himself
hear and try such case or he may refer the case to any
other Magistrate who is competent to hear and try the
case;
 Any Judicial Magistrate has the authority to recall any case
which he had transferred to any other Magistrate
under Section 192 of the Code and may inquire into the
case on his own.

Making over or withdrawal of cases by Executive

Magistrates
Section 411 of the Code contains provisions about the
withdrawal of cases by the Executive Magistrate. The Section
provides that any District Magistrate or Sub-divisional
Magistrate has the authority to:
 Withdraw any proceedings which started before the court
to any Magistrate who is subordinate to it for the disposal
of the case;

CrPC P a g e 49 | 249
  Withdraw or recall any case which he had earlier
transferred to any Magistrate subordinate to it and dispose
of the proceedings of the case himself or refer the same
for disposal to any other competent magistrate.

Conclusion
Transfer of cases does not alter the nature of the trial or relief
which is provided to the parties to the suit. It is a mechanism
ensuring the parties are rendered justice. The authority of
transferring of criminal cases from one court to another is
conferred upon Supreme Court, the High Court and the
Sessions Court. However, the powers with each of the institute
differ. If the party to the suit enforces their rights guaranteed to
them under the Sections and it is found that the intention of the
party is vexatious then the courts have the discretion of
ordering compensation to be paid by such person to the person
who has opposed it. The sum of compensation that the court
may order differs from courts to courts. Cases can be recalled
or withdrawn by the Sessions Judge, Judicial Magistrate and
Executive Magistrate. The order made under these sections has
to be recorded with the reasons for making these orders. There
should be reasonable apprehension that justice would not be
met by the court under jurisdiction then only the case can be
transferred.

Discuss the salient features of Probation of Offenders

Act, 1958.
The Act is based on a reformative approach which has come
over the years from the Doctrine of Deterrence. It has been
observed that the offender’s readjustment in society decreases
after the release. They might also face problems while working
with professional delinquents. This creates an undesired impact
on the convicted and his/her life afterwards. The Probation of
Offender Act, 1958 saves minor offenders from becoming
regular criminals. This is done by providing them with a chance
to reform themselves rather than getting into prison. The
probation officer amicably reaches to the needs and difficulties
of the accused and tries to solve the problem. This is done for
the person convicted of minor crimes.

The Probation Officer is the key human being in the process of

Probation management. He contacts the Probationer directly.
CrPC P a g e 50 | 249
He is responsible for upholding the provisions of the court’s
probation order. He carries out two primary functions which
consist of the Probation offender presentence investigation and
supervision of the offender. The Probation of Offender Act, 1958
aims at providing the release of the accused if he has been
found not guilty of an offence not punishable with death or life
imprisonment after due admonition. It has been enacted to
provide the offenders with an opportunity to prove that they
can improve their behaviour and can live in a society without
harming them.

It is also to be kept in mind that reformation doesn’t always

work. Sometimes the crimes are so heinous and abhorrent and
the criminals are so unrepentant that punishment of such
crimes is important. For some cases, reformation is not useful
and punishment is best to safeguard the society by locking
them for life.

Scope and Background

The Act is a landmark in advancing the new liberal reform
movement in the penology field. It is the result of the
recognition of the doctrine that criminal law is more about
reforming the individual offender than about punishing.
Probation has its influence from the juvenile justice system of
“positivism” which has its development from the ideologies of
the criminal justice system. The origin of probation was traced
in the early practices of the English law and experienced
development in the 19th century. However, the development of
probation began in the early twentieth century, when various
countries like Europe and North American began to initialize
methods to reduce the consequence of severe punishments.
Imprisonment became the most common mode of penal
sanction.

From early 1800 to the present date, probation has tried to

reform, remake, remould the offenders into honest, good and
law-abiding citizens. In India, the main legal articulation to the
reformatory framework for the probation theory is found in
procedural code. Later the Children Act, 1908 additionally
enabled the court to discharge certain guilty parties waiting on
probation because of their good conduct. The extent of
arrangements of probation law was expanded further by the
CrPC P a g e 51 | 249
enactment in 1923 resulting in the Indian Jails Committees
Report (1919-1920). In 1931 the Government of India arranged
a Draft Probation of Wrongdoers Bill and flowed it to the then
Provincial governments for their perspectives.

A Bill on Probation of Offenders was introduced in Lok Sabha on

November 18, 1957. A Joint Committee was formed to consider
the Bill allowing for the release of prisoners on probation or
after proper admonition and related matters. On 25 February
1958, the Joint Committee delivered its report to Lok Sabha. In
Parliament, the Probation of Offenders Act was adopted on the
advice of the Joint Committee. Probation in India is used as an
institutional method of treatment. The western does not allow
the use of institutional methods for probation. They administer
probation by voluntary organisations of sociologists and
psychologists. They consider that the judges should not
interfere with this.

The Indian system says that the judiciary should solely vest in
the probationary laws. This is so because the power of
probation will be vested upon the voluntary and extrajudicial
agencies which lack judicial methods and techniques. This
would create a serious problem as these organisations will have
their own values and considerations. Sociologists and
psychologists will be concerned only upon the reformations of
the offender and not the legal implication of the reformative
measure. Probation is subjected to judicial review under Article
226 of the Indian Constitution which will eventually allow the
judges to bring it under judicial scrutiny.

Aim and Objective of Probation

The main aim and objective of probation is to permanently
reform the lawbreakers. It involves moulding the habits into
constructive ways by rehabilitation and reformation. The
objective is to give a chance to the anti-social person to
willingly cooperate with society. This will also give him social
protection and security. It is a substitution for imprisonment.
Imprisonment will not always serve the purpose of eliminating
crime. The object of Probation Law is more to reform the
offender than to punish him. This is what we generally call
Probation. Simply, it can be understood as the conditional
release of an offender on the promise of good behaviour.
CrPC P a g e 52 | 249
The aim of this Section was to reform the young offender who
might have committed the crime under the influence of bad
company or ignorance. The object is to remould and save them
from the hardened criminals who might distract them to the
path of crimes. This Section also helps the persons of mature
age who may have committed the crime in influence. They are
expected to be good citizens of the country.

Statutory provisions under the Act

The provision is broadly classified into procedural and
substantive general laws dealing with probation of the
offenders.
The first provision to deal with probation was in Section 562 of
the Code of Criminal Procedure,1898. After the amendment in
1973, the probation was dealt with in Section 360 of the Code
of Criminal Procedure.
This Section says that if:

1. Any person who is not below twenty-one years and is

convicted of a crime for which the punishment is
imprisonment for seven years or is convicted for an
offence punishable with fine.
2. Or any person who is below twenty-one years or if any
women convicted of an offence not punishable with
imprisonment of life or death and no previous conviction is
proved against the offender.
3. And appears before the court, regardless of the
circumstances in which he has committed the offence, the
court might release the offender on the promise of good
conduct.

The court might release him on entering the bond for good
conduct and peace instead of punishing the offender with
imprisonment. In this case of Jugal Kishore Prasad v. The State
of Bihar, the Supreme Court stated that the aim of the law is to
deter the juvenile offenders from turning into obdurate
criminals as a result of their interaction with seasoned mature-
age criminals in case the juvenile offenders are sentenced to
incarceration in jail. It is observed that the Act is in accordance
with the present trend of penology, which says that effect
should be made with accordance to change and remould the
CrPC P a g e 53 | 249
offender and not to retribute justice. Modern criminal
jurisprudence recognises that no one is born criminal. A good
number of crimes are a result of a socio-economic environment.

The Probation of the Offenders Act, 1958 excludes the

application of Section 360 of the Code of Criminal Procedure,
1973 whenever the Act is applied. Section 3 to Section 12 of
the Probation of the Offender Act, 1958 deals with the
procedures of the court to deal with the release of the
offenders. The important aspects of the provisions are
discussed in five ways:

Admonition
(An admonition is advice with a hint of scolding, a warning not to do something.)
Section 3 of the Probation of the Offenders Act,1958 deals with
the power of court to release the offender after admonition. An
Admonition, in literal terms, means a firm warning or
reprimand. Section 3 says how the offender is benefited on the
basis of admonition after satisfying the following conditions:

1. When any person is found guilty of committing an offence

under Section 379 or Section 380 or Section 381 or
Section 404 or Section 420 of the Indian Penal Code,1860
or any offence punishable with imprisonment for not more
than two years, or with fine, or with both, under the Indian
Penal Code, or any other law
2. An offender should not previously be convicted for the
same offence.
3. The Court considers the nature of the offence and the
character of the offender.
4. The Court may release the offender on probation of good
conduct applying Section 4 of the Act, instead of
sentencing him. and,
5. The Court may release the offender after due admonition,
instead of sentencing him.

Case laws
Keshav Sitaram Sali v. The State of Maharashtra, AIR 1983 SC
291 – In this case, the appellant was an employee of the
Railways at the Paldhi Railway Station. He abetted the
execution of a charcoal theft crime committed by Bhikan Murad
in the case before the Special Judicial Magistrate First Class

CrPC P a g e 54 | 249
(Railways), Bhusawal, on the charges of charcoal stealing. The
learned Magistrate acquitted the appellant of that crime, and
the State Government filed an appeal before the Bombay High
Court against the acquittal judgment passed by the learned
Magistrate.

He was charged with a fine of Rs. 500 and in default of

payment, rigorous imprisonment for two months. The subject
matter of theft was a quantity of coal valued at Rs. 8. The
Supreme Court held that in case of minor thefts, the High Court
should extend the benefit of Section 3 or Section 4 of the
Probation of Offenders Act,1958 or Section 360 of the Code of
Criminal Procedure,1973 rather than imposing fines.

Basikesan v. The State of Orissa, AIR 1967 Ori 4 – In this case, a

20-year-old was found guilty of an offence under Section 380 of
the Indian Penal Code,1860. It was held that the youth had
committed the offence not deliberately and so the case must
be applied for Section 3 of the Probation Act and be released
after admonition.
Ahmed v. The State of Rajasthan, AIR 1967 Raj 190 – In this
case, the court said that the benefit of the Probation of the
Offenders Act does not extend to anyone who has indulged in
any activity that resulted in an explosive situation leading to
communal tension.

Probation on good conduct:

(Probation is a period of time during which a person who has committed a crime has to obey the law and be supervised by a
probation officer, rather than being sent to prison)

Section 4 of the Probation of the Offenders Act,1958 talks about

the release of the offender on the basis of good conduct. It is a
very important Section of the Act.

The important points that must be remembered for the

application of this Section are:

1. Section 4 of the Act is not applicable if the offender is

found guilty of an offence with death or imprisonment for
life.
2. The Court has to consider the circumstances of the case
including the nature of the offence and the character of
the offender.

CrPC P a g e 55 | 249
 3. The court may pass a supervision order to release the
offender on probation of good conduct. The supervisory
period is not to be shorter than one year. The probation
officer must supervise the individual for such a span in
such a situation. In the supervisory order, the name of the
probation officer should be listed.
4. The Court can direct the offender to execute a bond, with
or without sureties, to appear and receive sentence when
called upon during such period which should not exceed a
period of three years. The court may release the offender
on good behaviour.
5. The Court may put appropriate conditions in the
supervision order and the court making a supervision
order explain to the offender the terms and conditions of
the order. Such supervision order should forthwith be
furnished to the offender.
6. Probation officer’s report is not compulsory to enforce this
rule, but if the information is required on record, the Court
shall take into account the probation officer’s information
before granting a probation order for good behaviour.

Case laws
Smt. Devki v. The State of Haryana, AIR 1979 SC 1948 – In this
case, it was observed that Section 4 would not be extended to
the abominable culprit who was found guilty of abducting a
teenage girl and forcing her to sexual submission with a
commercial motive.

Dalbir Singh v. The State of Haryana, AIR 2000 SC 1677 – In this

case, the court took the opinion that it is appropriate for the
defendant to be placed on probation for his good conduct,
given that the facts of the situation are needed to be taken into
account. One of the circumstances informing the
aforementioned opinion which cannot be omitted is “the
essence of the offence.” Thus, Section 4 can be redressed
where the court recognizes the circumstances of the situation,
in particular the “character of the crime,” when the court
decides whether it is reasonable and necessary for the
execution of a defined reason that the defendant should be
released on the grounds of good conduct.

Cost and compensation

CrPC P a g e 56 | 249
Section 5 of the Probation of the Offenders Act, 1958 says that
if any person is released under Section 3 or Section 4 of this
Act, even then the court might order:

1. The offender to pay compensation to the victim for the

loss or the injury occurred to him. Or
2. Cost of the proceeding as the court may think reasonable.

Case laws
Rajeshwari Prasad v. Ram Babu Gupta, AIR 1961 Pat 19 – The
amount of compensation is purely on the discretion of the court
to grant if it thinks it is reasonable in the case. Thus, deciding
the amount of compensation, it is solely the court’s discretion
to require payment and costs where it finds.

Offenders under 21 years of age

Section 6 of the Probation of the Offenders Act,1958 talks about
the restriction on the imprisonment of offenders under twenty-
one years of age. This provision says that offenders who are
under 21 years of age are not sent to prison where the offence
is not so serious as to warrant imprisonment for life or death.
Important points to be remembered before the application of
Section 6:
 In cases where the accused is below 21 years of age, the
Court shall call for the report of the Probation Officer. If the
court’s opinion is not desirable with offender either on the
ground of admonition (Section 3) or on the ground of
release on probation of good conduct (Section 4), the
Court can pass sentence of imprisonment on the offender
who is under 21 of years ago but the Court cannot
sentence him without recording reasons for doing so. The
Court has an obligation to see whether Section 3 or 4 of
the Act applies or not. For this purpose, the Court must
call for the report of the Probation Officer. Therefore, the
report of the Probation Officer is mandatory when the
offender is under 21 years of age.
 The court considers the nature of the offence and the
character, physical and mental condition of the offender
before making any decision.
 It is difficult for the court to come to a conclusion whether
Section 3 or Section 4 applies or not unless the Court
considers the report of the Probation Officer, therefore, the
CrPC P a g e 57 | 249
 report of the Probation Officer is mandatory under Section
6 of the Act.
 On receiving a report, the Court peruses it and decides
whether the offender can be released on admonition or
probation of good conduct or not.
 After receiving the report, if the court orders that the
offender shall not be released, applying Section 3 or
Section 4 of the Act, the Court can pass sentence to the
offender recording the reasons for doing so.

Case laws
1. Daulat Ram v. The State of Haryana 1972 SC 2434 – In this
case, it was held that the aim of this Section was to
protect the youth. The juvenile offenders would not be
sent to jail if their crime was not as serious as to punish
them with life imprisonment or death. Therefore, the
provision should be liberally construed keeping in view the
spirit embodied therein.

Report of probation officers

Section 7 of the Probation of the Offenders Act,1958 deals with
the clause that the report of the probating officer is kept
confidential. No Probation Officer’s report is necessary to apply
Section 4 of the Probation of Offenders Act but such report is
must under Section 6 of Probation of Offenders Act if the
offender is under 21 years of age. However, if such a report is
available on the record, under Section 4 of the Act, the Court
shall not ignore it and that the Court shall take the report into
consideration.

Salient features of the Act

The most important salient feature of the act is
1. The Probation of Offenders Act of 1958 is aimed at
modifying novice prisoners by rehabilitating them in the
society and avoiding the progression of juvenile offenders
into obdurate criminals under environmental control by
locking them in prison with hardened criminals.
2. This seeks to release first offenders, following proper
admonition or notice with advice who are suspected to
have committed an offence punishable under Section 379,
Section 380, Section 381, Section 404 or Section 420 of
the Indian Penal Code and even in case of any crime
CrPC P a g e 58 | 249
 punishable with incarceration for not more than two years,
or with fine, or both.
3. The Act demands that the Court can order such
compensation and the costs of the prosecution for
reimbursement by the accused as it finds fair for the
damage or injury to the victim.
4. This Act empowers the Court to free those prisoners on
probation in good behaviour if the crime supposedly
perpetrated is not punishable by death or imprisonment
for life. He will, therefore, be kept under control.
5. The Act gives the Judge the right to modify the terms of
the bail after a prisoner is placed on probation with good
behaviour and to prolong the probation period not to
exceed three years from the date of the initial order.
6. The Act offers extra protection for people under the age of
twenty-one to prevent sentencing him to prison. However,
a person found guilty of a crime punishable by life
imprisonment cannot have this clause.
7. The Act empowers the Court to grant a warrant of arrest or
summons to him and his guarantees compelling them to
appear before the Court on the date and time stated in the
summons if the defendant placed on bail refuses to
comply with the terms of the bond.
8. Under the terms of this Act, the Act empowers the Judge
to try and sentence the defendant to jail. The High Court
or any other Court may even make such an order when
the case is put before it on appeal or in revision.
9. The Act offers a significant function for probation officers
to support the Court and oversee the probationers under
its supervision and to guide and support them in seeking
appropriate work.
10. The Act applies to India as a whole except for Jammu
State and Kashmir. This Act shall come into force in a State
on such date as the Government of the State may
designate, by notice in the Official Gazette. It also gives
state governments the right to put the Act into force on
multiple dates in different parts of the State.
The offence for which probation cannot be granted under the
Act
There are certain cases in which the Probation of the Offender
Act is not applicable. In normal circumstances the Probation of
the Offender Act is not applicable to:
CrPC P a g e 59 | 249
  Section 409, 467 and 471 of the Indian Penal Code – these
Sections deal with breach of trust by public servants,
forgery of valuable security and will and documents used
as a genuine forgery. In Rev vs By Adv. Sri
P.K.Ravisankar and State Of Gujarat vs V.A. Chauhan, on 3
February 1983, the court did not grant release of the
offenders on the basis of Section 3 and Section 4 of the
Probation of the Offenders Act,1958.
 Probation of the Offenders Act,1958 does not grant the
release on the grounds of kidnap or abduction. In the case
of Smt. Devki v. State of Haryana, AIR 1979 SC 1948 it
was observed that Section 4 would not be extended to the
abominable culprit who was found guilty of abducting a
teenage girl and forcing her to sexual submission with a
commercial motive.
 The Act refrains from providing release of habitual
offenders. In the case of Kamroonissa v. the State of
Maharashtra, AIR 1974 SC 2117, the appellant was
charged with the theft of gold. She was punished by
rigorous imprisonment. She was under 21 years of age.
The probation officer thus requested the court to grant her
the release under Sections 3 and 4 of the probation of the
offender’s Act. The court refused the claim by addressing
that the appellant had been engaging in various crimes
before and was arrested in 1971.
 Section 325 of the Indian Penal Code – This Section speaks
about the violence that causes grievous hurt. Thus, the
Probation of the Offender Act does not provide a release
on this basis.
 State of Sikkim v. Dorjee Sherpa And Ors– In some cases,
the Court does not take technical views and should take
into account certain considerations, such as the risk of
work losses, to invoke the provisions of the Probation of
Offenders Act even in serious offences. This was also
argued that the Court would also take into account that
convicts belonging to middle-class families with no
criminal record frequently become victims of situations
due to the unwelcome business and other negative forces
available to these young generations.

Pit-falls in Probation System in India

There are certain pitfalls in the probation system:
CrPC P a g e 60 | 249
It is difficult in many situations to determine whether the
criminal is a first offender or a recidivist. There is, therefore, a
possibility that an offender who is otherwise recurrent may be
admitted to probation and may not react favourably to this
technique of correction.
Section 4 of the Probation of Offenders Act, a main provision of
the Act, does not make it compulsory to supervise a person
released on probation unless the court orders release a person
on probation after entering into a bond with or without
immunity. This is not in line with the probation philosophy which
considers supervision important to the offender’s interests.

Section 6 of the Act allows the court to take into account the
report of the probation officer when it is appropriate to take a
decision to grant or deny probation to an offender under the
age of 21, but many times court decisions are made without
any report. Again, this goes against the spirit of morality that is
enshrined in the Probation Act. This is basically because of the
poor judiciary system.
The lack of real interest in social service among the probation
personnel presents a major problem in selecting the right
persons for this arduous job.

Explain investigation inquiry trial and inquest under

CrPC.
Investigation, Inquiry and Trial
An investigation is the first step taken by the police officer. in
any matter of offence and the culprit thereof. Inquiry includes
everything done by a Magistrate, irrespective of whether the
case has been challenged or not. A trial is a judicial proceeding
that ends either with conviction or acquittal.

Chapter XXIV of The Code of Criminal Procedure, 1973 deals

with the general provisions of Inquiries and trials. Inquiries and
trials are just two stages out of the various stages that help in
deciding the due course of a criminal nature.

Investigation
Investigation has been defined under Section 2(h) of CrPC.
Investigation includes all the proceedings under the Code
CrPC P a g e 61 | 249
required for the collection of evidence. It is conducted by a
Police Officer or by any person other than a magistrate, who
has been authorized by the magistrate on this behalf.

Steps of Investigation
 Proceeding to the spot where the offence has been
committed.
 Ascertain the facts and circumstances of the case.
 Discovery and arresting the suspected offender.
 Collecting evidence of the offence that may consist of:
o Examination of various persons (including accused)
and reduction of his statement into writing, if it is
deemed fit by the officer.
o The search and seizure that are considered necessary
for investigation and to produce before trial.
Who has the Authority to Investigate?
The police officer or any other person who has been authorized
by a Magistrate on his behalf is competent to investigate.
Commencement of Investigation
There are two ways to commence the investigation:
 The police officer in charge has the authority to
investigate when the FIR is lodged.
 When the complaint has been made to the Magistrate
then any person who has been authorized by the
Magistrate can investigate in this regard.
Malafide Investigation
If investigating agencies conduct mala fide investigation, then
it is open to correction by invoking the jurisdiction of the High
Court.

Gurman Singh v. State of Rajasthan, 1968

In this case, the Investigating Officer and the Station House
Officer had received information about a murder from an
unknown place. It was held that before the investigation
commences a Magistrate should take cognizance of the
offence.

State v. Pareshwar Ghasi, 1967

In this case, it was observed by the court that etymologically,
the meaning of term investigation is that which includes any
process involving sifting of materials or search of any relevant

CrPC P a g e 62 | 249
data for the purpose of ascertaining facts in issue in a matter in
hand.

Inquiry
An inquiry is done either by a Magistrate or it is done by the
Court but not by a police official. Investigation differs from
inquiry.
According to Section 2(g) of The Code of Civil Procedure, Inquiry
includes every inquiry except for a trial conducted under this
Code, that is done either by a Magistrate or by the Court. The
inquiry relates to the proceedings that are carried out by the
Magistrate before a trial is done.

Inquiry includes all the enquiries that are conducted under this
code but it does not include the trials that are conducted by a
Magistrate.

Section 159 of CrPC empowers the Magistrate on a receipt of a

police report under Section 157 of CrPC, to hold a preliminary
enquiry to ascertain whether an offence has been committed. If
the offence has been committed then, whether any person
should be put upon trial.
Types of Inquiry
 Judicial Inquiry
 Non-Judicial Inquiry/ Administrative Inquiry
 Preliminary Inquiry
 Local Inquiry
 Inquiry into an offence
 Inquiry related to matters other than an offence

Under Section 159 of CrPC, the Magistrate is empowered to

hold a preliminary inquiry on receipt of the police report
under Section 157 of CrPC, to ascertain whether an offence is
committed and if an offence has been committed then whether
any person has to be put upon trial.
The cases which are triable by the Session Court, the
commencement of their proceedings take place before a
Magistrate. The proceedings can be in the nature of an inquiry
preparatory to send the accused for trial before the court of
Session.

CrPC P a g e 63 | 249
Magistrate also conducts an enquiry in the cases which are
triable by himself under Section 302 of CrPC. If a complaint is
filed before a Magistrate, the Magistrate examines the
witnesses and the complainant on an oath to find out if there is
any matter for the investigation that has to be carried out by a
criminal court.
If the Magistrate distrusts the statement made by the
complainant and the witnesses, the Magistrate may dismiss the
complaint.
The result of the investigation or inquiry does not establish
sufficient ground to proceed with the case. All these
proceedings are done in the nature of the inquiry.

Difference between Investigation and Inquiry

Object: The object of investigation is to collect the evidence

related to the case, whereas the object of inquiry is to
determine the truth or falsity of certain facts related to the
offence, in order to take a further step.

Authority: An investigation is done by a Police Officer or by

any person other than a Court or a Magistrate, whereas inquiry
must be done by a Magistrate or Court.

Stage: Investigation is the first stage of any case and the

Magistrate further proceeds with an inquiry.

Commencement: Investigation commences after the FIR is

lodged or a complaint is made before a Magistrate, whereas
Inquiry commences after the complaint has been filed to a
Magistrate.

Trial
The Code of Criminal Procedure does not define the term trial. A
trial is a judicial proceeding that ends in either a conviction or
acquittal but does not discharge anyone. It is examination and
determination by a judicial tribunal over a cause which has
jurisdiction over it.

The trial begins in a warrant case with the framing of the

charge when the accused is called to plead thereto. In a
summons case, it is not necessary to frame a formal charge,
CrPC P a g e 64 | 249
the trial starts as soon as the accused is brought before the
magistrate and the particulars of the offence are stated to him.
The case which is exclusively triable by a session court, there
the trial begins only after committal proceedings done by the
Magistrate. Appeal and revision are included in the term trial,
they are a continuation of the first trial.
In a criminal trial, the function of the court is to find out
whether the person who is produced before the court as
accused, is guilty of the offence with which he has been
charged. To hold that the accused is guilty of the offence with
which he has been charged, the purpose of the court is to scan
the material on record to find out whether there is any
trustworthy and reliable evidence on the basis of which it is
possible to find the conviction of the accused.
There are generally three types of trials:
 Trial by Court of a session.
 Trial by a magistrate (can we summon or warranty case).
 Summary trials.
Mode of taking and Recording Evidence
Section 272 to 283 of CrPC read with rules under Chapter XII of
General Rules and Circular Order Volume I, explains the Mode of
taking and recording Evidence in criminal cases. The following
are the modes of recording evidence:
Section 273– It is mandatory to record all the evidence only in
the presence of the accused when his personal attendance has
been dispensed, the evidence must be recorded in the
presence of a pleader.
Section 274– Magistrate shall record a memorandum of the
substance of evidence in the court language and must be
signed by the Magistrate.
Section 275(1)– In all the warrant cases, the evidence of each
witness shall be in writing by Magistrate or under his direction if
the Magistrate is unable to do so due to some physical or other
incapacities, under his direction and superintendence, by the
officer of the court who is appointed by the Magistrate on his
behalf. The evidence under this subsection is to be recorded by
audio-video electronic.
Section 275(3)– This section permits the Magistrate to record
evidence in question and answer form.
Section 276– In Session Court, the recording should be done in
a narrative form. The presiding officer at his discretion can take

CrPC P a g e 65 | 249
down any part of the evidence in question and answer format
which has to be signed by him
Section 278– When the evidence of a witness is completed, it
should be read over to the accused or his pleader. This
shouldn’t be done at the end of the day when all the witnesses
have been examined. The evidence if needed can be corrected
by the accused.
Section 280– The presiding judge or magistrate is empowered
to record the remarks.
Marking of Exhibits
Some evidence shall be submitted by the prosecution, this
evidence has to be marked with the number in the order in
which they are submitted. The documents that are admitted on
behalf of defence shall be marked with capital letter alphabets.
If in case neither party does not accept the evidence then the
evidence shall be marked as Ext C-I, C-II etc.
If more than one number of documents are of similar nature,
then the small letter or small number is added in order to
distinguish each document in the series. After the evidence is
proved and admitted it shall be marked with a Roman number.
Example MO-I, MO-II etc. the bench clerk of the court shall
prepare the list of articles which shall be signed by the Judge.
Cases
Javer Chand and Ors. V. Pukhraj Surana, 1961
In this case, it was held that the Court does not proceed further
whenever an objection is raised in the court without passing
any order on such an objection. If there is an objection on the
stamp duty of a document, then objection will be decided then
and there before proceeding further.
State of Madhya Pradesh v. Budhram, 1995
In this case that accused was convicted for an offence under
Section 302 of IPC and was subjected to a death sentence.
The conviction was set aside evidence was not recorded in his
presence, later the case was remanded back for trial.
Banchhanidhi Singh v. State of Orissa, 1989
This case was reported in 1990 Criminal Law Journal. In this
case, the accused was facing trial u/s 379 of IPC. During the
time of examination, the lawyer who was representing the
accused was not present and the personal attendance of the
accused was dispensed with. The entire trial was held to be
vitiated by the High Court, as the examination was conducted

CrPC P a g e 66 | 249
in gross violation of the mandatory provision of Section 273 of
CrPC.
Acquittal of the person again for the same offence
The French terms Autrefois Acquit and Autrefois Convict,
meaning “previously acquitted” and “previously convicted”
respectively. A plea of autrefois acquit means that a person
cannot be tried for an offence for the reason that he has been
acquitted previously in the same offence and such a plea
combined or taken with a plea of not guilty.
Whereas, a plea of autrefois convict means that a person
cannot be tried for an offence for the reason that he has been
convicted previously in the same offence and such a plea
combined with a plea of not guilty.
Autrefois Acquit and Autrefois Convict are jointly termed as
Doctrine of Autrefois Acquit and Autrefois Convict. This doctrine
is basically a rule against double jeopardy, which means a
person cannot be tried once again for the same offence if he
has either been acquitted or convicted in a trial relating to the
similar offence.
It is provided under Article 20(2) of The Indian Constitution that
“No person shall be prosecuted and punished for the same
offence more than once”. The same principle has been
provided under Section 300 of The Code of Criminal Procedure,
1973 and in Section 26 of The General Clauses Act, 1897.
Section 300 of CrPC is based upon the maxim “nemo debet bis
vexari” which means that a person shall not be brought into
danger more than once for the same offence.
Section 300(1) of CrPC
According to Section 300(1), a person should be tried by a
Court of competent jurisdiction for an offence. At the same
time, a person cannot be tried for an offence for which he has
been previously convicted. In Section 300(1) the second trial of
the person is barred even if it is the same offence, but then if it
is based on same facts for such any other offence for which
charge might have been created against him under Section
221(1) or for which the accused might have been convicted
under Section 221(2).
Section 221(1) provides that if there is a doubt on the facts of
the case, as to what offence has been committed, the accused
may be charged with all such offences or any of such offences
or he may be given alternative charge of committing any one of
such offences.
CrPC P a g e 67 | 249
Section 221(2) provides that if the accused has been charged
with one offence, and it appears from the evidence that he has
committed a different offence, the offence for which he might
have been charged under Section 221(1), he may be convicted
of the offence committed by him, though he might not have
been charged with that offence.
Following points are covered under Section 300:
 There must be a trial of the accused on the hearing and
determination on merits. There is a ban on the subsequent
trial under Section 300(1). But there should be a trial of
the accused, and he must have been convicted or
acquitted on a previous trial. In case, there is no trial then
the subsequent trial is not barred for the same offence.
 The charge must be by a Court of competent jurisdiction,
if it is not by a court of competent jurisdiction then it is
void ab initio and accused if he has been acquitted, he will
be tried again for the offence. If it is held by the Court that
the first trial was not by a court of competent jurisdiction
then it goes for the second trial.
 The person in order to take a plea under this section to bar
the second trial for the same offence, he must have either
been convicted or acquitted in the first trial. A person who
has been discharged can be charged again if some other
testimony has been discovered against him.
 If the competent court has passed a judgement either
convicting or acquitting an accused, but if an order or
judgement is set aside by a Court either on revision or
appeal, then such person can be tried again for the same
offence, as the previous trial is annulled.
 The acquittal or conviction in the previous case cannot bar
the trial of the same person for a different offence.
State of Tamil Nadu v. Nalini, 1999
In this case, there was a criminal trial for offences under The
Terrorist and Disruptive Activities (Prevention) (TADA),1985 Act
now The Prevention of Terrorism Act, 2002 (POTA), and offences
under IPC. The subsequent trial for the offences under TADA
was barred as they were based on the same facts and the
conviction of the accused was set aside in the subsequent trial.
Section 300(2) of CrPC
Section 300(2) of CrPC contemplates a situation in which a
person is charged and tried according to Section 220(1) of
CrPC. In such a case, the person who is so charged can be tried
CrPC P a g e 68 | 249
again even after the conviction or acquittal order given in the
previous case, but there should be a prior consent of the State
Government.
Section 220(1) of CrPC provides that if one series of acts
connected together to form the same transaction if more than
one offence is committed by the same person, he may be
charged with and tried at a trial for each such offence.
If a person has been convicted of any offence and for another
offence, a separate charge could have been made, but it was
not made in the formal trial against the accused, the accused is
not liable to be tried again for another offence as a matter of
course because this itself might lend to abuse. Thus, due to this
reason the later part if this section envisages the provision that
there should be prior consent of State Government before going
for a second trial. It is required by the State Government to give
consent only after due consideration of facts and circumstances
of the case with a view of the promotion of justice.
Section 300(3) of CrPC
Section 300(3) provides a situation where a person is convicted
of any offence causing such consequences, that the act along
with the consequences constitutes a different offence other
than the one for which the accused had been convicted. In such
situations, if the consequences did not occur or the court is not
aware of such consequences at the time when the person was
convicted, then afterwards the person may be tried for such an
offence.
Section 300(3) only uses the words “a person convicted” and
not acquitted. Therefore, the rule does not apply in situations
where the person has been acquitted.
Illustration
 S is tried for causing grievous hurt to R, S is convicted for
this offence. It is found later that R dies due to the
grievous hurt. Here, in this case, S may be tried separately
once again for culpable homicide.
 If S is acquitted of causing grievous hurt to R, S cannot be
tried once again for culpable homicide under this Section,
if later it is found that R dies due to the grievous hurt.
Section 300(4) of CrPC
Section 300(4) provides where a person has been convicted or
has been acquitted of any offence constituted under any act,
he may be charged with and tried again for the same for an
offence based on the same facts notwithstanding his conviction
CrPC P a g e 69 | 249
or acquittal, if the Court in which he was previously tried was
not competent to try the offence with which he has been
subsequently charged.
Illustration
X is tried for robbery by a first-class Judicial Magistrate. Later
on, the same facts he is charged with the offence of dacoity. In
this case, since a Judicial Magistrate of first class cannot try the
subsequent offence of dacoity as it is triable only by a court if it
is a Sessions court, hence, the subsequent trial of X irrespective
of whether he has been convicted or acquitted, will not get
barred.
Section 300(5) of CrPC
Section 300(5) provides a situation where a person who has
been discharged under Section 258 of CrPC, he cannot be tried
for the same offence once again without the previous consent
of the court which gave an order of discharge or any other
court which is subordinate of former Court. This provision
provides a check against the abuse of power of a fresh
prosecution, especially in discharge cases under the said
provisions, thus, it treats discharges differently under the other
provisions of the law.
This section does not apply to discharge cases which have been
instituted on a complaint. Discharge under Section 258 can
never be regarded as an acquittal under Section 300(5). It has
been provided in the explanation of Section 300 that discharge
of an accused or dismissal of a complaint does not refer to
acquittal under this section.
Section 300(6) of CrPC
Section 300(6) provides specifically that “nothing in section 300
shall affect the provisions of section 26 of the General Clauses
Act, 1897 or of section 188 of this code.” If the accused got
acquitted in the first trial on a specific charge for an offence
that has been constituted under the same facts under a
different enactment.
State of M.P. v. Veereshwar Rao Agnihotry, 1957
In this case, it was held that under Section 409 of IPC there
cannot be any prohibition to a trial and a conviction, in a case
where the accused had been tried and acquitted of an offence
under Section 52 of The Prevention of Corruption Act, 1947 that
has been constituted on identical facts.

Appearance by public prosecutors

CrPC P a g e 70 | 249
Section 2(u) of CrPC defines Public Prosecutor. It includes any
person acting as per the directions of the Public Prosecutor.
Section 24 of The Code of Criminal Procedure defines Public
Prosecutor. A Public Prosecutor is considered as an agent of a
State, he represents the interest of the common people in the
criminal justice system. They serve the principle of audi
alteram partem i.e. no person shall be condemned unheard.
Babu v. State of Kerala, 2010
In this case, it was observed by the Court that the Public
Prosecutors are ministers of justice whose duty is to assist the
judge in the administration of justice.
Directorate of Public Prosecutor supervises as well as scrutinise
the functions of various prosecution agencies at Session level
and Assistant Session level except for the High Court.
Section 24 of CrPC gives the hierarchy of Public Prosecutor
 Public Prosecutor appointed by the Central Government.
 Public Prosecutor appointed by the State Government.
 Additional Public Prosecutor appointed by the State
Government.
 Special Public Prosecutor appointed by the Central
Government.
 Special Public Prosecutor appointed by the State
Government.
Section 24 talks about the appointment of Public Prosecutor in
District Court and the High Court by the State Government and
Central Government respectively.
Section 24(3)– The Public Prosecutor needs to be appointed in
every district and an Additional Public Prosecutor may be
appointed.
Section 24(4)– The District Magistrate in consultation with the
Session Judge has to prepare a panel of names that are
considered fit for such an appointment.
Section 24(5)– The person can not be appointed as a Public
Prosecutor or as an Additional Public Prosecutor in a district by
the State Government unless the person’s name appears on
the panel that is prepared under subsection 4.
Section 24(6)– Explains a case where a state has a local cadre
of the prosecuting officers, if in the cadre there is no such
suitable person for an appointment, the appointment must be
made from the panel that is prepared under subsection 4.

CrPC P a g e 71 | 249
Section 24(7)– The person can be appointed as a Public
Prosecutor only after practising as an Advocate for a minimum
7 years period.
It is stated in Section 25 of CrPC that an Assistant Public
Prosecutor in the district is appointed for the purpose of
conducting a prosecution in a Magistrate Court. For the purpose
of conducting a case, the Court may appoint more than one
Assistant Public Prosecutor.
The District Magistrate may appoint any other person in
absence of Assistant Public Prosecutor to act as an Assistant
Public Prosecutor.
The permission is granted under Section 321 of CrPC to Public
Prosecutor or Assistant Public Prosecutor to withdraw from the
case or prosecution with the Court permission before the
pronouncement of a judgement.
Functions of Public Prosecutor
 Public Prosecutor- supervises the functions of an Additional
Public Prosecutor in Session Court and High Court.
 Chief Prosecutor- supervises the functions of an Assistant
Public Prosecutor in a Metropolitan Magistrate Court.
 Additional Prosecutor- conducts criminal proceedings in a
Session Court.
 Assistant Public Prosecutor- examine the charge sheet that
is operated by the agencies and submits acquittal or
discharge. They are even responsible for the evaluation of
evidence as well as filing of petitions. They even conduct
criminal proceedings in Metropolitan Magistrate Court.
 Director of Prosecution- This is the head office, they
exercise overall control and supervision of officers of
Directorate. They look after the accounts branch.
Role of a Public Prosecutor
The role of a public prosecutor is divided into parts:
 In the investigation process.
 During trial.
Role of a Public Prosecutor during the investigation process
 To obtain an arrest warrant by making an appearance in
the Court.
 To obtain a search warrant in order to conduct a search in
the specified premises.
 To obtain remand of police custody for the interrogation
that includes custodial interrogation of the accused.

CrPC P a g e 72 | 249
  To initiate a proceeding for declaring the non-traceable
offender as a proclaimed offender.
 To record in the police report the evidence of the accused
with regard to the advisability of the prosecution.
Role of a public prosecutor at the time of trial
 If the accused is proven guilty then the Public Prosecutor
and the defence counsel argue further to decide the
quantum of the punishment.
 The prosecutors have a responsibility to call upon all the
witnesses whose evidence is an essential element in
deciding the case. They also have to cross-examine the
witness and make sure that no witness is left unexamined
and to produce all necessary documents.
Cases
 Vineet Narain v.Union of India, 1997
In this case, high political dignitaries were involved. There was
a failure in the investigation by the CBI. The Court held that
there are no restrictions or limitations in launching prosecutors
to initiate the investigation proceedings.
 Zahira Habibullah and Anr v. State of Gujarat and Ors,
2006
This case is also known as Best Bakery case. In this case, there
was a death of fourteen persons in Vadodara due to burning
down of a construction. The matter went to the Supreme Court,
where the court held that “Public Prosecutors acted more as
the defence rather than focusing on presenting the truth before
the Court”.
 Jitendra Kumar @ Ajju v. State (NCT of Delhi) and Anr,
1999
In this case, it was stated by the High Court “the Public
Prosecutor acts on the behalf of the state. The Public
Prosecutors are ministers of justice who play a pivotal role in
the administration of criminal justice”.
 Tikam Singh v. State and Ors, 2006
In this case, there is a public element attached to the office of
the Public Prosecutor. The public prosecutor does not act as a
complainant but as a representative if a state. The role of
Private Counsel is different from the role of a Public Prosecutor.
 Kunja Subidhi and Anr v. Emperor, 1928
In this case, it was held that the duty of the Public Prosecutor is
to place all relevant evidence before the Court. Whether the

CrPC P a g e 73 | 249
evidence is in favour of or against the accused, it should be left
upon the Court to decide.

Permission to conduct a prosecution

Section 302 of CrPC grants permission to the Magistrate who is
inquiring into or trying a case may permit the prosecution to be
conducted by any person who is not a police officer but should
be below a rank of Inspector. But no person other than
Advocate-General or a Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor shall be entitled to
conduct prosecution without such permission.
A police officer cannot be permitted to conduct the prosecution
if he took part in the investigation process of the offence with
respect to the offence with which the accused is being
prosecuted.
A Magistrate has the power to allow any person or a
complainant to appear personally or through a pleader, to
conduct the prosecution.
Section 302 of CrPC and two Judgements of the Supreme Court
of M/s J.K. International vs. State, Govt of NCT of Delhi and Ors.
are the answer to the proposition that a trial by a Magistrate, a
complainant or any other person in addition to a Public
Prosecutor can assist the Court and can also participate in the
conduct of a trial. The Supreme Court also adhered to the law
of the land binding on all Courts.
M/s J.K. International v. State, Govt of NCT of Delhi, 2001
In this case, the Supreme Court held that the scope of allowing
any private person who is intending to participate in the
conduct of prosecution is wider under Section 302. If the court
thinks that on a request of a party, the cause of justice could be
served better if such permission is granted then such
permission should generally be granted by the Court.
Dhariwal Industries Ltd v. Kishori Wadhwani and Ors., 2012
In this case, it was held that the scheme under the Code
indicates that a person aggrieved of an offence is not
altogether wiped out from the trial scenario, merely on the
ground that the investigation was Section 225 carried out by
police and the charge sheet was laid by them. The fact that the
Court had taken cognizance of the offence, even this is not
sufficient to debar him from reaching the court to ventilate his
grievance.

CrPC P a g e 74 | 249
Even in the Sessions Court where the only authority is the
Public Prosecutor, is empowered to conduct prosecution under
Section 225 of the Code. A private person aggrieved of an
offence who is involved in the case is not debarred altogether
from participating in a trial.
The private person who has the permission to conduct
prosecution in the Magistrate Court can engage a counsel on
his behalf to do the needful.
It is further amplified that if a private person is aggrieved of an
offence that has been committed against him or against a
person whom he is interested in, he can approach the
magistrate and seek permission to conduct the prosecution
himself. The Court can accept or reject the request, it is open to
the Court decision.
If the Court is of the opinion that the justice can be served
better if such permission is granted then generally such
permission is granted by the Court. This wider amplitude is
limited to Magistrate Courts, as the private person’s right to
participate in the Session Court for the conduct of prosecution
is restricted as it is subject under the control of the Public
Prosecutor.

Inquest
Police is required to conduct inquests under section 174
(1) CrPC in cases in which information is received by the
police that a person:

1. has committed suicide;

2. has been killed by some other person, or by machinery or
by an accident or by an animal;
3. has died under suspicious circumstances raising a
reasonable doubt that the offence has been committed by
some other person;
4. in cases of sudden death where the doctor has not issued
any death certificate;
5. has fallen from a height;
6. poisoning;
7. death due to sexual assault.

Inquests are made in cases of death otherwise than by natural

causes. It has to be made by the police officer under section
174 CrPC or by an executive magistrate magistrate under

CrPC P a g e 75 | 249
section 176 CrPC in case of dowry death; an inquiry shall be
held by the judicial magistrate or the metropolitan magistrate
in any death in the custody of the police or in any other custody
authorized by the court, according to sub-section 1(A) of
section 176 CrPC.

According to section 175 of the CrPC, a police officer

proceeding under Section 174 of the CrPC can summon two or
more persons and any other person who appears to be familiar
with the facts of the case for the purpose of investigation. and
every person so summoned is bound to attend and answer truly
all questions.

Holding Inquest is Mandatory

Holding an inquest is mandatory. The police officer who learns
of the death of any person as a consequence of any offence or
accident shall hold the inquest. Inquest is something akin to
panchnama. It is conducted on the dead body under the
auspices of the police who calls for at least two persons of the
locality to conduct the inquest. The persons conducting the
inquest are concerned only to examine the dead body and the
features which are apparent on the body and nothing more.
They are not concerned with the cause of the death.

The persons so conducting the inquest are examined in court as

witnesses and cross examined. The inquest report is marked as
an exhibit. If there are any discrepancies in the facts noted in
the inquest report and those given in the post mortem report
they have to be reconciled. However, the post mortem report
will prevail over the inquest report.

After steps for identification of the dead body have been taken
and dead body identified, condition of the body, injuries on the
body, and articles found on the body will find mention in the
inquest report.

Because it has to be handed over to the doctor along with the

dead body for post mortem examination, the inquest report is
an important document, and has to be prepared promptly.

CrPC P a g e 76 | 249
Object of Inquest
The purpose of holding an inquest has a limited scope. It is
merely to ascertain whether a person had died under
suspicious circumstances or an unnatural death and if so what
the apparent cause of death is. Details as to who assaulted the
deceased, how he was assaulted or under what circumstances
he was assaulted, are not to be mentioned in an inquest
report. Pedda Narayana v. State of Andhra Pradesh AIR,
April 1975
Names of the assailants or names of the witnesses need not be
mentioned in the in- quest report. Yogendra Singh v. State of
Rajasthan 1979 Cr. LR (Raj) 443

The names of accused persons are not required to be noted in

the inquest report. Eqbal Baig v. State of Andhra
Pradesh AIR 1987 SC 923, I987 Cr. LJ 838

All the details of overt acts need not be mentioned in the

inquest report. The prosecution story should not be rejected
merely because overt acts have not been mentioned in the
inquest report Pedda Narayana v. State of Andhra
Pradesh AIR, April 1975 or because the hour of death has not
been mentioned in the inquest report. State v. Satwant
Singh & Ors (1987) 1 IJR 33 (Del) [Murder Case of Smt. Indira
Gandhi, Late Prime Minister of India]

Legal Aspects
Statements recorded during inquest by the investigating officer
will have the same evidentiary value as if recorded under
section l61 CrPC.

The statement recorded by a magistrate doing inquest will have

the value of statements recorded under section 164 CrPC.

Accused is entitled to a copy of the inquest report under section

173 (7) and 207 (v) of CrPC.

A confessional statement of the accused made to a magistrate

holding inquest under section 176 CrPC is admissible in
evidence under section 21 of the Indian Evidence Act, 1872. If

CrPC P a g e 77 | 249
any witness gives a false statement to a police officer during
the inquest or when examined under section l6l CrPC, he has
committed an offence under section l92 IPC. If a magistrate
holds inquest and a person makes a false statement, he has
committed an offence under section 192 IPC and in both the
instances, the witness is liable for prosecution under section
192 IPC which is a cognizable offence.

The facts observed, the materials seized, the identification of

the deceased etc., are relevant facts falling under section 7 and
9 of the Indian Evidence Act, 1872 and hence they are
admissible. The statement of the investigating officer with
regard to the proceeding he had conducted is admissible under
section 60 of the Indian Evidence Act, 1872.

A statement in an inquest report is not evidence. Where the

name of one of the accused is not mentioned in the FIR or in
the inquest report and is also not disclosed to the investigating
officer, and no explanation is forthcoming, serious doubts arise
about the complicity of the accused in the crime. Balaka
Singh v. State of Punjab AIR 1975 SC 1962, 1975 Cr. LJ 1734

It is questionable how far an inquest report is admissible in

evidence except under section 145 of the Evidence Act.

The Supreme Court held that the officer holding an inquest on a

dead body should hold the inquest at the spot. KP Rao v.
Public Prosecutor 1975 SCC (Cr) 678, Indira Gandhi, Late
Prime Minister of India

Inquest is not a substantive piece of evidence and can be used

only for corroboration of evidence of the panch witness and not
for convicting the accused. Guggilla Santosh Reddy v. State
of Andhra A.P., 2001 Cr LJ NOC 110 (AP): (2001) l Andh LT
(Cri) 76

Important Points to Be Borne in Mind:

1. Hold inquest after minute inspection of scene, dead body
and also surroundings.
2. If parts of human body are found in different places,
whether on the same day or different days, draw separate
inquest. If the body with head is there without limbs,

CrPC P a g e 78 | 249
 inquest can be held. If all the parts of the body are found
at different places, they can be pieced together and
inquest can be held.
3. Hold inquest at the place where the dead body was found
and nowhere else.
4. Every single detail should find place in Part-I of the Case
Diary.
5. Inquest should be continuous until the end and not
piecemeal.
6. Post a guard during the night at the place where the dead
body is lying if you cannot commence inquest.
7. Hold inquest for each dead body separately, though in the
same transaction several persons might have died (e.g.,
motor, railway, or boat tragedies etc.).
8. Avoid erasures and overwriting in the inquest report. If
there is any mistake, draw a line over it so that it can be
read and initial it.
9. Record the statements of witnesses examined during the
inquest at the place itself in the presence of witnesses so
that there may be no allegation of concoction.
10. Send a copy of the inquest report to the medical officer
who is to conduct autopsy for his reference.
11. No stock witnesses should be utilized, as it is a common
practice in all the police stations.
12. In case of unclaimed bodies, the civic authorities should
be addressed for their disposal after waiting for the
prescribed period.
13. Photographs of the dead body along with its surroundings,
including entry and exit points, should be taken from
different angles. Photographs of any injury or special mark
over the dead body should be taken from very close to it
(close-up photograph).
14. Command Certificate, dead body challan, and a copy
of the inquest report should be issued to the constables
deputed for escorting the dead body.
15. The dead body should be covered properly and
handled respectfully while escorting it.
16. The provision of a dead body carrier vehicle and dead
body transportation bag at the requisition of the officer in
charge of the police station should preferably be kept.

When Post-Mortem Examination can be dispensed with?

CrPC P a g e 79 | 249
In cases of natural death of identified bodies where the
attending doctor certifies natural death or respected persons of
the locality satisfy the police officer that the person died due to
snake bite, falling from the tree, wild animal attack or natural
accident of drowning etc., the post-mortem may be dispensed
with. The police may take in writing the request of the relatives
for not sending the body for post-mortem. The police officer has
discretion not to send the body for postmortem examination by
the medical officer only when there is absolutely no doubt as to
the cause of death.

Difference between inquest and investigation

The inquest is limited within the scope of apparent injuries and
the inquest witnesses are confined within that limit. While full-
fledged investigation starts after the inquest and runs into the
wider canvass of how deceased was assaulted and who
assaulted him and then, arrest and recovery of the weapon
follows.

Checklist for Inquest Report

 Preliminary photography of the place including the

position of the dead body
 Distance of the dead body from fixed points
 Close-up photography of the dead body
 Drawing outline showing position of the dead body
 Sketching
 Position of the Body
 Where found (location)
 History of hospitalization
 Treatment given
 Medico-legal examination
 Dying declaration
 Name
 Sex
 Age
 Religion
 State
 Height
 Built
 Married / Unmarried
 Complexion

CrPC P a g e 80 | 249
  Occupational marks
 Any discoloration of the skin
 forehead
 Face
 Neck
 Shoulders
 Chest
 Abdomen
 Upper arm
 Lower arm
 Thigh
 Calf
 Foot
 Genital area
 Back of the shoulder
 Back Hips
 Hips
 Extent of bleeding
 Fatal injuries (Type, size, location, relative distances,
extent of damage to the organ, age of the wound ,
interpretation of weapon, etc.)
 Mark of strangulation/ suffocation / hanging / throttling #
Mark of burn injuries-nature, Extent and degree of burn
injuries
 Sign of drowning
 Sign of poisoning
 Apparent time since death
 Apparent cause of death
 wrapping the dead body in an intact piece of cloth and
sealing at knots
 Filling up the proforma for sending the dead body for post-
mortem examination
 special instructions for the post-mortem surgeon to be
filled in the PM challan form
 Deputing 2 constables to accompany the dead body to the
mortuary
 Dispatch of the dead body.

Discrepancy between Inquest Report and Post

Mortem Report

The police officer who prepares the inquest report is not an

CrPC P a g e 81 | 249
expert in medical jurisprudence. Where there is an
inconsistency between the post-mortem report and the inquest
report, the benefit should be given to the accused. In Maula
Bux Vs. State of Rajasthan, 1983 SCC (Cr) 199, the
investigating officer, in the inquest report, mentioned
contusions and penetrating wounds found on the body of the
deceased. But the medical officer in the post-mortem report
showed that the deceased had sustained penetrating wounds
and abrasions. The Supreme Court held that the benefit must
be given to the accused appellants who are said to have
inflicted injuries by lathi on the deceased.

The list of injuries mentioned in the inquest report cannot

prevail over the details of the post-mortem report, even
assuming that there are some inconsistencies between the
two. State v. Satwant Singh & others (1987) 1 IJR 33(Del)
(Murder Case of Smt. Indira Gandhi, Late Prime Minister of
India)

A statement in the inquest report is not evidence by itself and

cannot be pitted against the evidence of the medical witness
given in court. Surjan v. State of Rajasthan AIR 1956 SC
425, 1956 Cr LJ 815, 822

Conclusion
Inquests are held over dead bodies in cases of unnatural deaths
in order to ascertain the apparent cause of death either by the
police officer or the executive magistrate or the judicial
magistrate depending on the nature, victim and place of death.
It should be held in presence of two preferably local witnesses.
In cases of deaths in police and judicial custody, inquest is
mandated to be done by the judicial magistrate. While holding
inquest photography of the dead body along with its
surroundings should also be taken.

Explain Warrant case and Summons Case

Meaning of Summon

Summon is a legal document issued by the magistrate

under Section 204 (1) (a) of the code that orders a person to
appear before the court, when a complaint has been made
against him. In pursuance of Section 61 of the code, summon
CrPC P a g e 82 | 249
must be in writing, duly signed by the presiding officer of that
concerned court, and should bear such court’s seal. Otherwise, it
would be considered to be invalid.
Reiteratively, the punishment tenure of summons cases would not
exceed two years of imprisonment, which connotes the less
serious nature of the case and thus, demands a speedy
settlement yet without compromising the procedures of a fair
trial. The procedure for the same is explained under Chapter XX
of the Code of Criminal Procedure.
The Code of Criminal Procedure has defined summons cases
under Section 2(w) as cases related to an offence, which is not a
warrant case. It is pertinent to note that any offence eligible to be
punished with INR 50 is perceived as summon case. The code has
prescribed the procedure to be followed while dealing with such
matters between Section 251 and 259. As far as the nature of the
procedure is concerned, it is the same as other trials yet notably
less formal so as to render speedy remedies

.
Trial of Summon Case
Section 251 of the code enjoins the explanation of particulars to
the accused and recording the plea of the accused by the court.
The same has been affirmed in the case of State of Gujarat v.
Lalit Mohan. Though this provision does not mandate the
framing of charges, it does mandate conveying the particulars to
the accused, when he is brought before the court. However, in the
case of Manbodh Biswal v. Samaru Pradhan, it was elucidated
by the court that the provision itself provides that a trial is not
vitiated merely on the grounds that this provision had not been
complied with if such non-compliance has not caused any
prejudice to the accused. This provision directs the magistrate to
ask the accused whether he pleads guilty or has any defence to
make.

If the accused pleads guilty then the subsequent Section

252 comes into play as it provides for the conviction of the
accused after recording his plea and examining the witnesses of
both prosecution and defence. In the case of Thangjam v.
Irabot Singh, it was held that a joint statement by all the
accused persons cannot be treated as a plea of guilty. Section
253 dealt with the procedure for convicting an accused based on
his plea of guilty in his absence in petty cases.
Now the question here is, what if the accused pleads ‘not guilty’,
the code addresses it under Section 254. If the accused has not
CrPC P a g e 83 | 249
been convicted on plea under Section 252 or 253, then the
magistrate is bound to hear the prosecution and his witnesses.
The accused cannot be acquitted without examining the
witnesses of the complainant as the magistrate is duty-bound to
examine all the witnesses produced by the prosecution and
accused, as well. Failure to hear the accused will make the
criminal trial erroneous in pursuance of Section 465. On the
application of the concerned party to the case, the magistrate
shall issue summon to any witnesses, and he would prepare the
memorandum of the evidence under Section 274 of the code.

Following the recording of evidence under Section 254, the

magistrate would look into the produced piece of evidence and
adjudge whether or not to acquit the accused. If found not guilty,
the magistrate may acquit the accused under Section 255, if not,
then the magistrate will proceed as per Section 360 or 325 of the
code and may convict him under Section 252 or 255 for the
offences triable under the Chapter XX. Section 256 dealt with the
procedure on the occasion of the non-appearance or death of the
complainant. In the case of S. Rama Krishna v. S. Rami Reddy
it was held that if the representative of the deceased complainant
does not appear for 15 days, the court could acquit the
defendant. It is to be noted that Section 259 empowers a
magistrate to convert a summon case into a warrant case.
Warrant Case
Meaning of Warrant

a warrant is an order issued to a particular person, who is obliged

to apprehend the accused and produce him before the court. The
object of the warrant is to bring the accused before the court, who
has not appeared before the court even after the issuance of
summon. The magistrate is the only competent person who can
execute the order. Such order should bear the court seal and the
sign of the presiding officer. Warrant case connotes the cases,
wherein the committed offence is punishable for a term not less
than two years. The validity of the warrant last till the date it has
been cancelled by the same court.
Warrant cases are categorized under Chapter XIX and defined
under Section 2(X) of the Code. A trial for a warrant case begins
either with the filing of an FIR in the police station or by making a
complaint before the magistrate. In a warrant case, the charge is
framed against the accused. A warrant trial is based on two types
of cases,
1. On the police report
CrPC P a g e 84 | 249
 2. Other than the police report
The procedure for a warrant case has been dealt with under
Sections 238 to 250 of the Code of Criminal Procedure.
Trial of Warrant Case
Case instituted on a Police Report

Section 238 of the code provides that when a warrant case is filed
on the police report, and the accused is brought before the
magistrate, the magistrate is supposed to comply with the proviso
of Section 207 of the code. The subsequent Section 239 discusses
when an accused shall be discharged, it provides that if the
magistrate finds out that the charges framed against the accused
are groundless after examining the police report, and the
associated documents have been under Section 173 and
considering all relevant arguments of the parties. In the case
of Century Spinning and Manufacturing Co. Ltd v. State of
Maharashtra, it was held by the court that this provision under
CrPC has to be read with Section 240. It is the duty of the court to
frame charges and, therefore, the court must consider over the
matter judiciously.
Section 240 dealt with the framing of charges after examination
and consideration. If the magistrate is of the opinion that there
are adequate grounds to believe that the accused has committed
the offence, he shall frame a charge in writing against the
accused. It is pertinent to note that Section 240 not only
authorizes a magistrate to consider the police report and the
associated documents sent under Section 173 but also to
examine the accused at his discretion.

As like Section 252, which provides for the conviction of the

accused on the plea of guilty in summon cases, Section 241 is for
warrant case. The subsequent Section 242 provides the
procedure for instances where the accused pleads ‘not guilty. In
pursuance of the aforementioned provision, the magistrate shall
fix the date for the examination of witnesses of both parties. In
extenso, Section 242 has dealt with evidence of the prosecution,
whereas the procedure for producing defence counsel evidence is
explained under Section 243 of the code.

Cases instituted other than on Police reports

Section 244 to 247 of Chapter XIX is exclusively dedicated to
dealing with the procedure for warrant cases trial instituted other
than on a police report. Section 244 addresses the magistrate’s
CrPC P a g e 85 | 249
duty to ask the prosecution to produce witnesses to be examined
before closing evidence and framing the charge. Nevertheless, it
is noteworthy that the magistrate is under no obligation to
summon any witness on his own as the onus is on the prosecution
to do so.
Section 245 elucidates when the accused shall be discharged.
Court has explicated the same in the case of Muhammad v.
Balkrishna that this Section does not clothe the Magistrate with
any arbitrary power of discharge; rather, there must be ground or
material records to conclude that no offence is made out. Thus, if
all the evidence that has been produced by the prosecution within
4 years of the institution of the case does not create any
reasonable ground to discharge the accused, then the magistrate
at his discretion can acquit the accused. Per contra, if the
magistrate believes after considering the evidence that a
reasonable ground is there, which indicates that the accused has
committed the offence, Section 246 becomes operative as it
provides for the procedure where the accused is not discharged.
The continued provision, Section 247 has dealt with the evidence
for the defence; this takes place only after the framing of charges,
where the accused would be given a chance to cross-examine the
prosecution witnesses. Conclusively, just like every other trial, the
warrant trial also ends with acquittal or conviction of the accused
pursuant to Section 248 of the code.
Summons Case
Meaning of Summon
Summon is a legal document issued by the magistrate
under Section 204 (1) (a) of the code that orders a person to
appear before the court, when a complaint has been made
against him. In pursuance of Section 61 of the code, summon
must be in writing, duly signed by the presiding officer of that
concerned court, and should bear such court’s seal. Otherwise,
it would be considered to be invalid.
Reiteratively, the punishment tenure of summons cases would
not exceed two years of imprisonment, which connotes the less
serious nature of the case and thus, demands a speedy
settlement yet without compromising the procedures of a fair
trial. The procedure for the same is explained under Chapter XX
of the Code of Criminal Procedure.
The Code of Criminal Procedure has defined summons cases
under Section 2(w) as cases related to an offence, which is not
a warrant case. It is pertinent to note that any offence eligible
to be punished with INR 50 is perceived as summon case. The
CrPC P a g e 86 | 249
code has prescribed the procedure to be followed while dealing
with such matters between Section 251 and 259. As far as the
nature of the procedure is concerned, it is the same as other
trials yet notably less formal so as to render speedy remedies.

Trial of Summon Case

Section 251 of the code enjoins the explanation of particulars to
the accused and recording the plea of the accused by the court.
The same has been affirmed in the case of :
State of Gujarat v. Lalit Mohan. Though this provision does
not mandate the framing of charges, it does mandate
conveying the particulars to the accused, when he is brought
before the court. However, in the case of Manbodh Biswal v.
Samaru Pradhan, it was elucidated by the court that the
provision itself provides that a trial is not vitiated merely on the
grounds that this provision had not been complied with if such
non-compliance has not caused any prejudice to the accused.
This provision directs the magistrate to ask the accused
whether he pleads guilty or has any defence to make.
If the accused pleads guilty then the subsequent Section
252 comes into play as it provides for the conviction of the
accused after recording his plea and examining the witnesses
of both prosecution and defence. In the case of Thangjam v.
Irabot Singh, it was held that a joint statement by all the
accused persons cannot be treated as a plea of guilty. Section
253 dealt with the procedure for convicting an accused based
on his plea of guilty in his absence in petty cases.
Now the question here is, what if the accused pleads ‘not
guilty’, the code addresses it under Section 254. If the accused
has not been convicted on plea under Section 252 or 253, then
the magistrate is bound to hear the prosecution and his
witnesses. The accused cannot be acquitted without examining
the witnesses of the complainant as the magistrate is duty-
bound to examine all the witnesses produced by the
prosecution and accused, as well. Failure to hear the accused
will make the criminal trial erroneous in pursuance of Section
465. On the application of the concerned party to the case, the
magistrate shall issue summon to any witnesses, and he would
prepare the memorandum of the evidence under Section 274 of
the code.

CrPC P a g e 87 | 249
Following the recording of evidence under Section 254, the
magistrate would look into the produced piece of evidence and
adjudge whether or not to acquit the accused. If found not
guilty, the magistrate may acquit the accused under Section
255, if not, then the magistrate will proceed as per Section 360
or 325 of the code and may convict him under Section 252 or
255 for the offences triable under the Chapter XX. Section 256
dealt with the procedure on the occasion of the non-
appearance or death of the complainant. In the case of S.
Rama Krishna v. S. Rami Reddy, it was held that if the
representative of the deceased complainant does not appear
for 15 days, the court could acquit the defendant. It is to be
noted that Section 259 empowers a magistrate to convert a
summon case into a warrant case.

Warrant Case
Meaning of Warrant
a warrant is an order issued to a particular person, who is
obliged to apprehend the accused and produce him before the
court. The object of the warrant is to bring the accused before
the court, who has not appeared before the court even after the
issuance of summon. The magistrate is the only competent
person who can execute the order. Such order should bear the
court seal and the sign of the presiding officer. Warrant case
connotes the cases, wherein the committed offence is
punishable for a term not less than two years. The validity of
the warrant last till the date it has been cancelled by the same
court.
Warrant cases are categorized under Chapter XIX and defined
under Section 2(X) of the Code. A trial for a warrant case begins
either with the filing of an FIR in the police station or by making
a complaint before the magistrate. In a warrant case, the
charge is framed against the accused. A warrant trial is based
on two types of cases,
1. On the police report
2. Other than the police report
The procedure for a warrant case has been dealt with under
Sections 238 to 250 of the Code of Criminal Procedure.
Trial of Warrant Case
Case instituted on a Police Report
Section 238 of the code provides that when a warrant case is
filed on the police report, and the accused is brought before the
CrPC P a g e 88 | 249
magistrate, the magistrate is supposed to comply with the
proviso of Section 207 of the code. The subsequent Section 239
discusses when an accused shall be discharged, it provides that
if the magistrate finds out that the charges framed against the
accused are groundless after examining the police report, and
the associated documents have been under Section 173 and
considering all relevant arguments of the parties. In the case
of Century Spinning and Manufacturing Co. Ltd v. State
of Maharashtra, it was held by the court that this provision
under CrPC has to be read with Section 240. It is the duty of the
court to frame charges and, therefore, the court must consider
over the matter judiciously.
Section 240 dealt with the framing of charges after examination
and consideration. If the magistrate is of the opinion that there
are adequate grounds to believe that the accused has
committed the offence, he shall frame a charge in writing
against the accused. It is pertinent to note that Section 240 not
only authorizes a magistrate to consider the police report and
the associated documents sent under Section 173 but also to
examine the accused at his discretion.
As like Section 252, which provides for the conviction of the
accused on the plea of guilty in summon cases, Section 241 is
for warrant case. The subsequent Section 242 provides the
procedure for instances where the accused pleads ‘not guilty. In
pursuance of the aforementioned provision, the magistrate
shall fix the date for the examination of witnesses of both
parties. In extenso, Section 242 has dealt with evidence of the
prosecution, whereas the procedure for producing defence
counsel evidence is explained under Section 243 of the code.
Cases instituted other than on Police reports
Section 244 to 247 of Chapter XIX is exclusively dedicated to
dealing with the procedure for warrant cases trial instituted
other than on a police report. Section 244 addresses the
magistrate’s duty to ask the prosecution to produce witnesses
to be examined before closing evidence and framing the
charge.

Nevertheless, it is noteworthy that the magistrate is under no

obligation to summon any witness on his own as the onus is on
the prosecution to do so.

CrPC P a g e 89 | 249
Section 245 elucidates when the accused shall be discharged.
Court has explicated the same in the case of Muhammad v.
Balkrishna that this Section does not clothe the Magistrate
with any arbitrary power of discharge; rather, there must be
ground or material records to conclude that no offence is made
out. Thus, if all the evidence that has been produced by the
prosecution within 4 years of the institution of the case does
not create any reasonable ground to discharge the accused,
then the magistrate at his discretion can acquit the accused.
Per contra, if the magistrate believes after considering the
evidence that a reasonable ground is there, which indicates
that the accused has committed the offence, Section 246
becomes operative as it provides for the procedure where the
accused is not discharged. The continued provision, Section
247 has dealt with the evidence for the defence; this takes
place only after the framing of charges, where the accused
would be given a chance to cross-examine the prosecution
witnesses. Conclusively, just like every other trial, the warrant
trial also ends with acquittal or conviction of the accused
pursuant to Section 248 of the code.

Difference Between Summon Case And Warrant Case

Points of
Summon Case Warrant Case
difference

Punishment Less than two years of More than two years of

Tenure imprisonment imprisonment

Dealt with under

Dealt with under Chapter –
Chapter –XX of CrPC
Procedure XIX of CrPC from Section 238
from Section 252 to
to 250.
259.

Charge Framing of charges Framing of Criminal charges

Framing against the accused is against accused person is
not necessarily to be mandatorily to be done.
done. But, only the

CrPC P a g e 90 | 249
 particulars must be
conveyed to the
accused.

It notifies the accused It brings the accused person

person that he is before the court, who has
Object
legally obliged to ignored the summon has
appear in court. been duly issued to him.

It instructs to produce In general, it authorizes a

the relevant police officer to bring the
Content
documents and others accused person before the
before the court. court.

· Absence of the
· Absence of the complainant.
Discharge of
complainant. · If no charges are framed.
the accused
· On the death of the · If the offence is non-
person, when?
complainant. cognizable and
compoundable.

A summon case can be By no mean, a warrant case

Conversion of
converted into a can be cannot be converted
case
warrant case. into summon case

Who is Juvenile?
Before going in depth of this act let's first know the term
'juvenile'. It refers to any person below the age of 18 who has
been accused of a crime. As you know child is one whose age is
under 18 years, but when this child commits any crime, normal
or heinous, called a juvenile.

Do you Know there is an act called juvenile justice which deals

with juveniles? Do you know in our country juveniles' trials are
treated differently from adult criminals' trials? Well, you are
going to know more about this act through the following lines-

Juvenile justice act (care and protection of children)2015

passed by the Lok Sabha in may,2015 amidst protest and
criticism. It passed by the Rajya sabha in december 2015. It
repealed juvenile justice (care and protection act of children)
2000.

Juvenile Act 2000:

CrPC P a g e 91 | 249
According to this act every juvenile in India would not be
treated as a normal criminal whether he or she has committed
a normal crime or a heinous crime. And maximum punishment
was detention in reformatory homes for 3 years. This led to a
high controversy and intense protest when one of the accused,
in the 2012 Delhi gang rape, was a few months younger than
18 years of age and under the Act was tried in a juvenile court.

And after the Nirbhaya case of 2012 on the seer insistence of

people this act had been repealed by juvenile justice
amendment act 2015 which contains 10 chapters and 112
sections.

Aim of the Act:

This act was brought to stop juveniles from becoming a harder
criminal. The primary goals of the juvenile justice system, to
maintain public safety, skill development, habilitation,
rehabilitation, addressing treatment needs, and successful
reintegration of youth into the community.

Provision of Act:
This act has transformed the central adoption resource
authority as a statutory body. The bill also seeks to make the
adoption process of orphaned, abandoned children. Families
adopting these children will be monitored and shall receive
financial aid from the state. Processes have been streamlined
with timelines for both in-country and inter-country adoption
including declaring a child legally free for adoption. As per the
provisions, a single or divorced person can also adopt, but a
single male cannot adopt a girl child.

If a child under the age of 16-18 commits a heinous crime then

the child could be treated as adult criminals.

However, there would be no death penalty and life

imprisonment.

Likely the previous act (juvenile justice ,2000), offender

indulging in not very serious crime would not be treated as
adult criminals and maximum punishment would be of 3 years.

In the 2000 act, financial help was provided by the state to

CrPC P a g e 92 | 249
juveniles till 21 years. However, it changed and now this shall
be given when a child is released from the reformatory homes
and after completing the age of maturity i.e.,18.

30 days appeal time against order of board to children court.

No appeal against order of acquittal if not involved in heinous

crime.

What to do when you see a child committing crime and what

procedures are there in act:
You can inform the police indirectly.
Special juvenile police unit is created to deal with such
matters. This unit will arrest the child and present him in front
of the juvenile justice board within 24 hours. In between this
period children would be kept in observation homes, not in jail
with other adult criminals.

Juvenile Justice Board:

Board shall consist of metropolitan magistrate, two social
workers one shall be woman. Function of this board is basically
to protect children's rights throughout the process of
apprehending, providing legal aid etc or providing interpreters
or requiring social investigation reports.

According to the act , the board has to decide the case within a
maximum of 4 months. However, in some serious cases the
board can take period of 6 months to decide case.

In matters of normal crime there shall be only summary trial as

mentioned in indian penal code.

In serious crime there shall be a summon trial.

In heinous or very serious crimes the juvenile justice board will

send the case to children 's courts and then the trial would be
dealt there.

If children court find juvenile as convict after hearing all

concern points then court can give any punishment except
death penalty and life imprisonment.

CrPC P a g e 93 | 249
Punishment can be:
There are different methods of punishment depending on the
seriousness of crime like fine,creative punishment as group
council wherein psychotherapist or expert conversate to the
offender and try to reform his mind and thoughts ,can release
on the basis of bond or promise to not misbehave in future(in
very normal crime). In serious cases the offender is lodged in
reformation homes that rehabilitate the offenders through
educational and vocational training.

Remember.
Any child who has committed any crime has the right to bail till
the trial Parents have the right to know why their child has
been arrested and where their child is being imprisoned.

Child in need to care and protection:

These terms have been used in the act.
What does it mean?
It means that there are some children in the country who need
care and protection and the provisions to rehabilitate such
children are mentioned in the act.

We Can Understand Through The Following Points That Who Are

These Children:
1. Who is found without any home or settled place of abode.
2. Mentally ill.
3. Whose parents or guardian is found unfit to care and
protect the child.
4. Who is found vulnerable and is likely to be inducted into
drug abuse or trafficking and so on.

Offences Against Child And Their Punishment:

1. If one disclose the identity of children- 6 months
imprisonment or 1 lakh fine or both
2. Cruelty to child-3 years imprisonment and 1 lakh fine.
3. Employing a child for begging- 5 years imprisonment and
1 lakh fine
4. Giving intoxicating liquor or drugs to child -7 years
rigorous imprisonment and 1 lakh

CrPC P a g e 94 | 249
 5. Sale of children for any purpose - imprisonment of 5 years
and 1 lakh. And so on.

Authority Established By Act:

Juvenile Act 2015 clearifies the powers, function and
responsibilities of Juvenile Justice Board (JJB) and Child Welfare
Committee (CWC); clear timelines for inquiry by Juvenile Justice
Board (JJB); The Act mandates setting up Juvenile Justice Boards
and Child Welfare Committees in every district. Both must have
at least one woman member each.

In a Nutshell:
As per the report of the national crime records bureau the
crime rate committed by persons within the age of 18 is
continuously increasing. And it is needed for every child to be
aware of these laws ,so these increasing rates can be
controlled. This act was brought to stop juveniles from
becoming harder criminal.

It is also observed that the crimes done by children under the

age of 15-16 have increased significantly. The general tendency
or the psychology behind the commitment of the crime or the
causes of crime are early-life experiences, dominant
masculinity, upbringing, economic havocs and so on. Since the
minds of the kids possess an innocent and manipulative
character, If we can understand the childs subjective problem,
we can stop Juvenile Crime.

First Information Report

The term ‘First Information Report’ has not been defined in the
Code of Criminal Procedure. Rather the term has not been used
except in section 207 which requires the Magistrate to furnish
to the accused a copy of the First Information Report recorded
under section 154 (1) of the Code. The report first recorded by
the police relating to the commission of a cognizable case is the
First Information Report giving information on the cognizable
crime.
It may be defined as follows:
1. It is a piece of information given to the police officer.
2. The information must relate to a cognizable offence.
3. It is a piece of information reported first in point of time.
CrPC P a g e 95 | 249
 4. The victim of the cognizable offence or someone on
his/her behalf gives information and lodges a complaint
with the police.

This is the information on the basis of which investigation

begins. The FIR must be in writing.
In the State of Rajasthan v. Shiv Singh, the Rajasthan High
Court defined a First Information Report as ‘the statement of
the maker of the report at a police station before a police
officer recorded in the manner provided by the provisions of
the Code.’

The FIR marks the beginning of the journey of investigation that

is to be performed by the police officers. The police officers,
during the process of investigation, look for evidence and
possible witnesses who could testify for the commission of the
offence or the offence for which the FIR is filed. It is essential
that the person filing an FIR not give false information with
malicious intentions to hamper justice.

An FIR is a fundamental document that initiates legal

proceedings by providing significant information about the
offence committed or the apprehension of the same. It can be a
criminal offence, a public concern, or both. This document plays
a major role in providing direction to police officers as to in
which direction they need to proceed with the investigation.
This document is essential for both parties to the case.

A brief overview of all the sections dealing with FIR

Section 2(c) of the CrPC
Section 2(c) of the CrPC defines the cognizable offences for
which an FIR can be lodged. These offences are listed in
Schedule I of the Code. These offences fall under this category
and are allowed for filing/lodging an FIR.

Cognizable offences are those for which the police officer is

allowed to arrest the accused without a warrant or magistrate’s
permission. These offences are more heinous and serious in
nature. For example, murder, rape, kidnapping, abduction, etc.
These crimes have the capability of harming the peace and
harmony of a society. They are mostly public offences. Usually,
the punishment given for cognizable offences is more than 3
CrPC P a g e 96 | 249
years and may extend to life imprisonment or the death
penalty.

Schedule I of the CrPC

Schedule I of the CrPC enlists the offences that are classified as
cognizable offences, for example, murder, robbery, etc. These
offences require immediate police attention, and preventive
measures are needed to be taken by them. These offences are
generally more severe and graver in nature and act against the
public interest at large.

Section 154(1) of the CrPC

Section 154(1) of the CrPC talks about the procedure for
recording an FIR. Cognizable offences that are reported orally or
in writing must be written down by the police officer. They
should be re-read by the officer for the person lodging the FIR
and signed by him thereafter. A copy of the report must be
given to the person lodging the FIR, i.e., the informant, free of
cost.
This Section lays out a brief outline of the process by which an
FIR must be recorded, documented, and acted upon by the
police officer.
Section 154(3) of the CrPC
Section 154(3) of the CrPC talks about the actions to be taken if
a police officer denies recording the FIR. In such cases, the
informant can go to the Superintendent of Police (also known as
the Deputy Commissioner in a Police Department). On
satisfaction that the crime committed is cognizable, he should
either investigate the case himself or direct a subordinate to
take the required measures. This Section provides for a remedy
or legal recourse that may be taken by the informant if he feels
that his complaint is not being entertained by the police officer.

Object
The main objective of filing F.I.R. is to set the criminal law in
motion. And also to enable the police officer to start the
investigation of the crime committed and collect all the
possible pieces of evidence as soon as possible.
The various objects of recording F.I.R. are:
 To inform the District Magistrate and the District
Superintendent of Police, who are responsible for the

CrPC P a g e 97 | 249
 peace and safety of the district, of the offence, reported at
the police station.
 To make known to the judiciary and judicial officers before
whom the case has to be ultimately tried, about the facts
and scenario which came out after the immediate
occurrence of the crime.
 To safeguard and protect the accused against subsequent
additions or variations.

Essential Conditions of F.I.R.

In Moni Mohan v. Emperor, it was decided that the essential
conditions of F.I.R. are:
 It must be a piece of information.
 It must be in writing. If given in writing, should be reduced
into writing by the concerned police officer.
 The main act or crime should be cognizable in nature, not
the ones subsequent to the main act.
The F.I.R. must be in the nature of complaint or accusation with
the object of getting the law in motion.
Information in Cognizable Cases [S.154]
Since the information received u/s 154 is termed as FIR, it is
important to know the provisions relating to the procedure for
recording information in respect of cognizable cases u/s/ 154.
 If the information is given orally to an officer in charge of a
police station, it has to be reduced in writing by the
concerned police officer. It should be then read over to the
informant, and then signed by him. The information thus
received has to be recorded in a book authorised by the
state government regarding the same.
 A copy of the information recorded is to be given to the
informant, free of cost.
 If the officer in charge refuses to record the information,
the person may send such information, the aggrieved
person may send, the substance of such information to
the Superintendent of Police and the Superintendent of
Police if satisfied about the commission of the cognizable
offence, shall either investigate the case himself or direct
an investigation to be made by the subordinate police
officer. Such police officer shall exercise all the powers of
an officer in charge of the police station in the concerning
offence.

CrPC P a g e 98 | 249
When the information is given by a woman against whom any
of the offences under sections 326 – A, 326-B, 354, 354-A to
354-D, 376, 376-A to 376-E or 509 IPC is alleged to have been
committed or attempted, such statement shall be recorded by a
woman police officer or any woman officer.

What Kind of Information is Considered in an F.I.R?

Only information relating to the commission of a cognizable
offence can be termed as an FIR. It is not necessary that the
information must set out every detail of the case. It need not
state the name of the accused also. What is necessary is that it
must disclose information regarding the commission of a
cognizable offence.
Information received in the following cases is not considered as
FIR:
1. Information received after commencement of the
investigation.
2. Telephonic information, unless it has been given by a
known person who discloses his identity and the message
contains all the necessary facts which constitute an
offence and such a message is reduced to writing by
S.H.O.
3. Information of mere assemblage of some persons.
4. Indefinite, Vague and unauthorized information.

Evidentiary Value of F.I.R.

An FIR is not a substantive piece of evidence. That is, it cannot
be considered as evidence of facts stated therein. However, FIR
may be used for the following purposes:
1. It can be used to corroborate an informant witness u/s 157
of Evidence Act. But it cannot be used to contradict or
discredit other witnesses.
2. It can be used to contradict an informant witness u/s 145
of Evidence Act.
3. FIR can be used by the defence to impeach the credit of
the maker under sec. 155(3) of the Evidence Act.
4. A non-confessional FIR given by an accused can be used
as an admission against him u/s 21 of Evidence Act.
5. FIR can be used as a dying declaration as substantive
evidence If it relates to the cause or occasion or
circumstances and facts which resulted in the informant’s

CrPC P a g e 99 | 249
 death. within the meaning of section 32(1) of the Evidence
Act.
If the accused himself lodges the FIR, it cannot be used for
corroboration or contradiction because the accused cannot be a
prosecution witness, and he would very rarely offer himself to
be a defence witness u/s 315 of the Code.

Delay in Filing FIR

The object of early filing of F.I.R. to the police as soon as
possible, in respect of the commission of the offence is to
obtain and receive fresh information regarding the
circumstances and facts which tend to result in the commission
of the offence. The FIR shall have better corroborative value if it
is recorded and taken before the informant’s memory fades and
before he starts to forget the facts. Thus, if there is a delay in
lodging FIR and the delay is unreasonable and unexplained, it is
likely to create scope for suspicion or introduction of a
concocted story by the prosecution. It is the duty of the
prosecution to explain the delay in lodging FIR. If satisfactorily
explained, it does not lose its evidentiary value. However, mere
delay in lodging FIR is not fatal to the prosecution case.
In Raghbir Singh v. The State of Haryana, It was held that going
to the hospital due to the condition of the victim for saving his
life instead of going to the police station first was a reasonable
and valid explanation for the delay in filing F.I.R.

Delay in Filing FIR in Case of Rape

In cases of rape and other sexual offences, the case is not only
related to the victim but also with the family of the victim.
Many times due to shame and honour they do not contact the
police immediately. Therefore the courts have consistently
ruled that delay in a case of sexual assault cannot be equated
with the case involving other offences.

In Harpal Singh v. State of Himachal Pradesh, It was held

that ‘delay of 10 days in lodging the first information report
stands reasonably explained when the prosecution stated that
as the honour of the family was involved, the members needed
time to decide whether the matter should be taken to the court
or not.
Relevant Provision qua FIR

CrPC P a g e 100 | 249

 1. Under section 157 of the Indian Evidence Act, any former
statement relating to the same fact may be proved. The
former statement may be written or oral. The account
book of a witness may also be included. The object of this
section is to admit the statements made at a time when
the mind of the witness is still so connected with the event
as to make it reasonably probable that the description
given by him is or would be accurate or correct.
2. Section 145 of the Evidence Act provides for one of the
matters in which credit of a witness may be impeached.
The object is either to test the memory of the witness or to
contradict him by the previous statement in writing. The
statement in FIR made by the witness can be used for this
purpose but a witness can be contradicted only by his own
previous statement and not the statement of any other.
3. Section 8 of the Evidence Act provides the guilty mind
begets guilty conduct. Conduct of any person against
whom the offence was committed is always relevant and it
is shown in illustration (j) and (k) of section 8. Conduct
here includes the conduct of both i.e. accused as well as
the victim. Conduct of accused which is of non-
confessional nature may be brought within section 8 and it
will be admissible also under section 21 of the Evidence
Act.
4. The FIR can also be used for cross-examination of
informants and for contradicting him. But it cannot be
used for the purpose of corroborating or contradicting any
witness other than the one lodging the FIR.

Who can lodge an FIR?

An FIR may be filed by any person who either witnessed or has
knowledge of the commission of a cognizable offence. The
police officer is under the obligation to file such an FIR for the
cognizable offence. The person against whom an FIR is being
filed can be the person who either committed an offence, has
knowledge of the commission of an offence, witnessed the
offence, or abetted in such an offence.

The informant doesn’t need to have first-hand information

about the offence. Even an anonymous notice to the police that
contains information about such an offence can be treated as a
formal complaint. The police officer can also lodge an FIR
CrPC P a g e 101 | 249
himself if he has knowledge that a cognizable offence has been
committed. In Hallu v. State of MP (1974), it was held
that Section 154 of the CrPC talks about the information that an
informant holds relating to the cognizable offence given to the
officer in charge; thus it is not necessary for the informant to
have personal knowledge of such an offence.

Duration for filing an FIR

It has been seen that an FIR should be filed promptly and
expeditiously without wasting any time. However, there might
be certain circumstances where some amount of concession
must be given on reasonable grounds. This shall only be
allowed in the interest of justice. Judges have to judiciously
decide using their wisdom whether to grant such a concession
or not. There is no fixed duration of time that can be granted to
apply the test of reasonableness. It is purely dependent on the
facts and circumstances of the case and the gravity of the
offence.

Steps for filing an FIR

The procedure to get an FIR lodged is fairly simple:
1. The moment a cognizable offence is committed or is
apprehended, you need to contact your nearest police
station. The FIR must be filed immediately, and there shall
be no delay in filing the FIR. If, for some reason, it gets
delayed, then you need to provide reasonable justification
for the delay.
2. The informant has to tell the police officer the exact things
and circumstances that he knew or witnessed. You can
describe the incident either orally or in writing. However, it
is the duty of the police officer to reduce it in writing.
3. The report must be read back to the informant and signed
by him. Before signing the report, you must ensure its
accuracy. You should sign the report only after it has been
carefully read and verified by you.
4. It is the duty of the police officer to serve you with a free
copy of the FIR.
5. The following things must be mentioned in the FIR-
 Name,
 Address;
 Date, time and location of the incident,
 FIR number,

CrPC P a g e 102 | 249

  Name of the police station,
 Facts of the incident,
 Name and descriptions of the persons involved in the
incident,
 Witnesses (if any).

Rights of a person lodging FIR

There are certain rights and protections given to the person
who is lodging an FIR in the interest of justice, and those are:
1. The informant has the right to receive copies of the FIR
and related documents as soon as they are filled out by
the police officer in charge, as per Section 154(2).
2. The informant has the right to receive the information in
case the police officer does not conduct an investigation
on insufficient grounds. This right is vested with us
under Section 157(2).
3. The police officer must deliver a copy of the report
submitted by him for the inquiry by the magistrate. As
per Section 173(2)(i) and (ii), the informant must have
knowledge of the actions taken by the police officer.
4. If the magistrate issues the process, then the informant
must be given notice and a fair chance of getting heard by
the magistrate.

Reports and statements that do not amount to FIR

 A report or a statement that is recorded after the
commencement of the investigation under Sections 162
and 163 of the CrPC.
 Information not about the occurrence of a cognizable
offence but only a cryptic message in the form of an
appeal for immediate help.
 Information to the Magistrate or police officer is given via
phone or any electronic device.
 Reports were recorded after several days of development
of facts and circumstances.
 Information received at the police station prior to the
lodging of an FIR.
 Reports not recorded immediately but after questioning of
witnesses.
 Complaint to the Magistrate.

CrPC P a g e 103 | 249

It was held in Damodar v. State of Rajasthan (2011) that if the
information was conveyed to police by telephone and a DO
entry was made, it would not constitute an FIR even if the
information disclosed the commission of the cognizable
offence. The Supreme Court has given Directions to be followed
in regard to the registration of an FIR. These directions are as
follows-
 The registration of an FIR is mandatory under Section 154
of the CrPC. It is mandatory only under the circumstances
where there is the commission of a cognizable offence or
no preliminary inquiry is allowed in such a situation
 A preliminary inquiry can be conducted in cases where it is
not clear whether a cognizable offence was committed or
not.
 An FIR must be registered if it is clear from the inquiry
conducted that a cognizable offence was committed.
 If the inquiry is closed with a complaint, then the
informant must be informed about it along with the
reasons in writing within 1 week of such closure.
 The officers cannot refuse to register the FIR if a
cognizable offence is committed. If any officer denies,
action must be taken against him.
 A preliminary inquiry is conducted just to know if a
cognizable offence was committed or not.
 Cases in which preliminary inquiry is conducted are as
follows (the mentioned list is not exhaustive but is merely
illustrations)-
 Matrimonial disputes
 Family disputes
 Commercial offences
 Medical negligence cases
 Corruption cases
 Cases where there’s a delay in the initiation of
proceedings
 The preliminary inquiry must be time bound and should
not exceed 7 days. The general diary entry must contain
the facts and reasons for the delay.
 The diary in which all the information relating to a
cognizable offence is recorded must reflect the reason for
conducting a preliminary inquiry.

Types of FIR
CrPC P a g e 104 | 249
 1) False FIR
An FIR filed with a malicious intention to spread false
information about someone or defame him. If such information
is given to a public official to harm another person, he can be
punished under Section 182 or Section 203 of the Indian Penal
Code (1860), as the case may be. Section 177 of the IPC covers
the situation where the police officer himself gives incorrect
information even after being aware of the truth.

2) Second FIR
There has been a lot of debate over the permissibility of a
second FIR. It completely depends on the nature and
circumstances of a case. It is permissible even if there are the
same facts and conditions, provided that the formal complaint
was decided on insufficient grounds and without understanding
the gravity of the offence. However, it won’t be maintainable if
the case was decided and disposed of on the complete merits
and after consideration of facts and circumstances.

Various courts have laid down different interpretations of the

circumstances. They have provided various tests for it. Tests
are given by the courts for figuring out the following:
1. Whether the conspiracies are identical or not?
2. Whether the earlier complaint was disposed off on
immaterial grounds or not?
3. Whether an order has been passed without understanding
the nature of the complaint or not.

3) Zero FIR
A zero FIR can be registered in cases of cognizable offences
that require the immediate attention of the police to act. It can
be registered at any police station, irrespective of jurisdiction.
The police officers can act on this without the court’s
permission and even before the complaint is handed over to
the relevant jurisdiction. It is typically used for offences like
murder and rape. Zero FIR is meant to help victims of serious
offences, especially women and children. It is a quick and
convenient way to lodge a complaint, without having to go from
one police station to another. If an officer disregards the
registration of a zero FIR, he may face consequences
under Section 166A of the IPC.
CrPC P a g e 105 | 249
 4) Cross FIR
When the parties involved in a case file an FIR against each
other regarding the same incident, it is known as a cross FIR.

5) Multiple FIR
When the aggrieved parties file multiple FIRs for the same
cause of action, same incident, and same persons, it is called a
multiple FIR. Filing multiple FIRs is prohibited by the court in the
case of Surender Kaushik v. State of UP (2013). This act
jeopardises the inquiry and causes confusion, and delays
justice.

Evidentiary value of FIR

The FIR is not a substantive piece of evidence but can be
considered evidence in the following situations:
1. As per Section 154 of the CrPC, the FIR marks the
beginning of the investigation proceedings, and on the
basis of this investigation, the charge sheet is made
under Section 173 of the CrPC.
2. Though the FIR is not a substantive piece of evidence, it
helps in corroborating the facts and statements made by
the informant and cross-examining him thereafter.
3. As per Section 8 of the Indian Evidence Act (1872), the FIR
can be used as proof of the actions of the informant.
4. As per Section 32(1) of the Indian Evidence Act (1872), if
the informant dies and the statement recorded by the
police in the FIR includes the reason for his death or about
the events that might lead to his death, then it can act as
substantial proof to validate the reasons for his death. This
acts as a dying declaration, wherein the person testifies
about the circumstances leading to his death.
5. As per Section 145 of the Indian Evidence Act (1872), the
FIR may be used to refute the informant’s testimony. This
Section allows the contradiction of witnesses during the
cross-examination.
6. As per Section 157 of the Indian Evidence Act (1872), the
FIR may be used in support of a witness but cannot be
used to refute or undermine the testimony of other
witnesses.
7. If the accused himself lodges the FIR, it cannot be used for
corroboration or contradiction because the accused cannot
CrPC P a g e 106 | 249
 be a prosecution witness, and he would very rarely offer
himself to be a defence witness as per Section 315 of the
Code of Criminal Procedure.

Difference Between F.I.R and Complaint

While in common parlance the terms FIR and complaint are
often used interchangeably, both terms have different legal
meanings and implications. The primary difference between a
complaint and FIR is that while FIR is lodged with the police, a
complaint is made to the magistrate.

The major points of difference are:

F.I.R COMPLAINT

Complaint is defined u/s 2(d) of the Code

as “any allegation made orally or in
writing to a Magistrate, with a view to his
FIR is not defined under the
taking action under this Code, that some
code.
person, whether known or unknown, has
committed an offence, but does not
include a police report.[1]

FIR is lodged with an officer

Complaint is filed with the Magistrate.
in charge of a police station.

FIR relates to information as It may relate to the commission of any

to the commission of a offence, whether cognizable or non-
cognizable offence. cognizable.

The magistrate cannot take The magistrate is empowered u/s 190 of

into cognizance of an Cr.P.C. to take cognizance of an offence
offence. upon a private complaint.

It is not a substantive piece The complaint itself is substantial

of evidence. evidence.

In a summons case, a complainant can

The FIR once lodged with
withdraw a complaint against all or any of
the police station cannot be
the accused, at any time before a final
withdrawn by the informant.
order is passed. (Sec. 257)

The informant is not bound The Complainant must take an oath

to take an oath before the before the Magistrate.
police officer while lodging

CrPC P a g e 107 | 249

 FIR.

The informant would not be

liable for malicious
The complainant is liable for
prosecution if the
malicious prosecution if the complaint is
information furnished by
found to be false.
him is found to be incorrect
or false.

Discuss the procedure to be followed in the trial before

the court of session.

Ans:
Steps in the trial:
1) Opening case for prosecution
2) Discharge
3) Framing of charge
4) Explaining the charge to the accused
5) Conviction on plea of guilty
6) Date for prosecution evidence
7) Evidence for prosecution
8) Examination of witnesses
9) Record of the evidence
10) Oral arguments and memorandum of arguments on behalf of the prosecution
11) Explanation of the accused
12) Hearing the parties
13) Order of the acquittal
14) Court witnesses, if any
15) Arguments
16) Judgment and connected matters
17) Judgment
Opening case for prosecution
When the magistrate commits a case under Section 209 to the
Court of Session and the accused appears or is brought before
the Court, the prosecutor is required under Section 226 to open
his case by explaining the charge against the accused and also
states the evidence by which he will prove the guilt of the
accused. At this stage, full details of the evidence need not be
stated. The opening of the prosecution case must only be to
matters which are necessary to follow the evidence. It is not
necessary for a Public Prosecutor in opening the case for the
prosecution to give full details of the evidence with which he
intends to prove his case.
Discharge
The Court, on considering the documents and records of the
case, and hearing the prosecution and the accused on the
matter, shall discharge the accused if the Judge thinks that
CrPC P a g e 108 | 249
there is no sufficient ground to proceed against the accused.
The Judge is required to record his reasons for discharging the
accused under Section 227. It was held in State of Karnataka v.
L. Muniswamy that the object of this Section is to require the
Judge to give reasons for discharging the accused is to enable
the superior court to examine the correctness of the reasons
for which the Sessions Judge has held that there is or is not
sufficient ground or not to proceed against the accused.

Framing of charge
Under Section 228, The Judge after considering the records of
the case and the documents submitted along with it in
evidence and hearing the prosecution and the defence, he
thinks that there is a ground to presume that the accused has
committed the offence and is exclusively triable by the Court of
Session, he will frame a charge against the accused.

If the case is not exclusively triable by the Court of Session

then the Judge may frame a charge against the accused and by
order, transfer the case to the Chief Judicial Magistrate or any
other Judicial Magistrate of First Class. He shall direct the
accused to the Judicial Magistrate to whom the case has been
transferred. The Magistrate shall then try the case in
accordance with the procedure laid down for the trial of the
warrant-cases instituted upon a police report.

If two views are possible regarding the guilt of the accused,

then the one which is more favourable to the accused has to be
taken.
It was held in Knati Bhadra Shah & anr v. State of West
Bengal while exercising power under Section 228 CrPC, the
Judge is not required to record his reasons for framing the
charges against the accused.

While framing charges, only the prima facie case has to be

seen. At this stage, the Judge is not required to record a
detailed order necessary to see whether the case is beyond
reasonable doubt as held by the Supreme Court in Bhawna Bai
v. Ghanshyam & Ors.
In Rukmini Narvekar v. Vijaya Satardekar it was ruled by the
Court that the accused cannot produce any evidence at the
stage of framing of charge and only those materials can be
CrPC P a g e 109 | 249
taken into consideration which is specified in Section 227 at the
time of framing charges.
Explaining the charge to the accused
Section 228(2) says that when a case is exclusively triable by
the Court of Session and the Judge frames a charge against the
accused he has to read and explain the charge and ask the
accused if he wants to plead guilty or claims to be tried. The
Judge shall ensure that the charge read and explained to the
accused have been fully understood by him before he is asked
to plead guilty. In Banwari v. State of UP, the Court held that
default in reading out or explaining the charge to the accused
would not vitiate the trial unless it has been shown that non-
compliance with Section 228 has resulted in prejudice to the
accused.
Conviction on plea of guilty
The accused may plead guilty under Section 229 or he can
refuse to plead. The Court under Section 229 has the discretion
to accept the plea of guilty. This discretion has to be applied
with care and not arbitrarily. Also, the Judge has to ensure that
the plea has been made voluntarily and not under any
inducement otherwise it would be violative of the Provisions of
the Constitution of India. It was held in Queen Empress v.
Bhadu that the plea of guilty must be in unambiguous terms
otherwise such a plea is considered as equivalent to a plea of
not guilty.

Section 229 states that if an accused pleads guilty then the

Judge shall convict him as per his discretion and shall record
the same. The Court cannot convict an accused on the basis of
the plea of guilty where the offence is of a nature in which the
punishment is death or imprisonment for life. In Hasaruddin
Mohommad V Emperor, the Court held that it will be reluctant
for the Court to convict a person accused of an offence in which
the punishment is death or life imprisonment on the basis of his
plea of guilty. The right of appeal of the accused is curtailed
by Section 375 If the accused is convicted on the basis of his
plea of guilty.
Date for prosecution evidence
Under Section 230, the Judge will fix a date for the examination
of witnesses if the accused has refused to plead guilty or does
not plead guilty, or if he claims to be tried or if he is not
convicted under Section 229. On an application of the
CrPC P a g e 110 | 249
prosecution, the Judge will issue a process for compelling the
attendance of witnesses or to produce any document or any
other thing.
Evidence for prosecution
As provided by Section 273, all the evidence must be taken in
the presence of the accused or in his absence in the presence
of his pleader during the course of a trial or proceeding.
Examination of witnesses
When the date is so fixed (as mentioned under Section 230),
The Judge will proceed to take all the evidence that may be
produced by the prosecution in his support as per Section 231.
The Judge has the discretion to permit cross-examination of any
witness to be deferred until the other witness or witnesses have
been examined or recall any witness for further cross-
examination.
Section 137 of the Indian Evidence Act, 1872 (‘IEA’) states that
the examination of a witness shall be done by the party who
calls him (prosecution) and it shall be called examination-in-
chief. The cross-examination of the witness is done by the
adverse party (defence). The re-examination is done
subsequent to cross-examination by the prosecution

Section 138 of the IEA, 1872 lays down the order of

examination of the witnesses. It says that the witness should be
first examined in chief and then cross-examined. The
examination in chief is done by the party who calls the witness
and cross-examination is done by the adverse party. If the
party who called the witness so desires, can re-examine the
witness with the permission of the Court.

The examination-in-chief and cross-examination should be

connected to the relevant facts of the case. However, the cross-
examination does not need to be restricted to the facts to
which the witness has testified in examination-in-chief. The re-
examination shall be related to the explanation of the matters
referred to in the cross-examination.

If any new matter has arisen in the re-examination, the defence

may further cross-examine the witness upon that matter. The
objective behind re-examination is to offer the witness a
chance to clarify any issues raised during the cross-

CrPC P a g e 111 | 249

examination and is therefore constrained only to those issues
that were raised during the cross-examination.

In Ram Prasad v. State of UP it was held that, if the court finds

that the prosecution had not examined witness for reasons not
tenable or proper, the Court would be justified in drawing an
inference adverse to the prosecution.

The Court observed in State of Kerala v. Rasheed that a

balance must be struck between the rights of the accused and
the prerogative of the prosecution to lead the evidence while
deciding an application under Section 231(2). The following
factors must be considered:
 the possibility of undue influence,
 threats,
 that non-deferral would enable subsequent witnesses
giving evidence on similar fact to tailor their testimony
to circumvent the defence strategy,
 of loss of memory of the witness whose examination-in-
chief has been completed.
Record of the evidence
According to Section 276, the evidence of each witness in all
trials before a Court of Session shall be written down by the
Presiding Judge himself or under his dictation or under his
direction and superintendence by the officer of the Court
appointed by the Judge in this behalf. Such evidence is usually
taken down in a narrative form. The presiding Judge may also
write it down in question-answer form as per his discretion. The
evidence so taken down must be signed by the Judge and form
a part of the record.

It has been provided under Section 278(1) that when the

evidence of each witness is complete, it shall be read over in
the presence of the accused or in his absence in the presence
of his pleader and shall if necessary be corrected. Also, as
per Section 279 If any evidence is given in a language that the
accused or his lawyer does not understand, it shall be
interpreted to the accused or his lawyer in the language
understood by him.
Steps to follow the prosecution evidence
For procuring the evidence of the prosecution the following
steps have to be followed as mentioned below:
CrPC P a g e 112 | 249
Oral arguments and memorandum of arguments on behalf of
the prosecution
Under Section 314 the prosecutor has to submit his oral
arguments after the conclusion of prosecution evidence and
before any other steps in the proceedings are taken. It is also
necessary to submit a memorandum, in brief, stating the
arguments in his favour and a copy of that memorandum
should be given to the opposite party. Adjournment for filing of
written argument shall only be given if the court thinks it
proper and record reasons for the same. The court will regulate
an oral argument If it thinks it is irrelevant or not concise. The
prosecution argument at this stage helps the court to conduct
an examination of the opposite party and seeking his
explanation on the issue raised by the prosecution.
Explanation of the accused
Under Section 313 the Court may examine the accused after
the evidence for the prosecution has been taken. The object of
this Section is to give an opportunity to the accused of
explaining any circumstances that seem to appear against him.
After the witness for the prosecution have been examined and
before the accused is called upon for his defence, Section
313(1)(b) requires the court to question the accused person
generally on the case for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him.

It was ruled by the Supreme Court in Shivaji Sahabrao Bobade

v. State of Maharashtra, it is basic that the prisoner’s attention
should be attracted to each inculpatory material in order to
allow him to clarify.
It was held in Asraf Ali v. State of Assam that, if a matter is
significant against the accused and the conviction is proposed
to be founded on it is correct and legitimate then the accused
be examined concerning the issue and be given a chance to
clarify it.

Hearing the parties

Section 232 gives an opportunity to both the prosecution and
defence to address the court before calling upon the accused to
enter upon his defence and to adduce evidence in support of it.
The comments of the parties should be related to the evidence
given by the prosecution and the examination of the accused.
CrPC P a g e 113 | 249
Order of the acquittal
An accused may be acquitted if there is no evidence against
him that he has committed the offence. Under Section 232 the
Judge will record an order of acquittal in favour of the accused
if he thinks that there is no evidence against the accused that
he has committed the offence.
Steps to follow the defence evidence
As per Section 233 when the accused is not convicted under
Section 232 he shall be called upon to produce evidence he
may have in his support. If the accused desires he can give
evidence in his defence in a written form and the Judge shall
file it with the record. The steps to be followed for obtaining the
evidence of the defence are discussed below.

Court witnesses, if any

As per Section 311, the Court can at any stage of any inquiry,
trial or other proceedings, summon and examine any person as
a court witness if his evidence appears to the court that it is
essential for the just decision of the case.

Arguments
Under Section 234, the prosecution shall sum up his case and
the accused or his pleader shall be entitled to reply, and if any
point of law is raised by the accused or his pleader, the
prosecution may with due permission of the Judge make his
submission with regard to point of law. It is to be noted
that Section 314 also talks about the arguments of the parties.
However, Section 234 provides that after the evidence for the
defence is concluded it is for the prosecution to sum up the
case, and then the defence will be entitled to reply. Section 234
is a special one regarding argument whereas Section 314 is a
general provision and therefore Section 234 would prevail over
Section 314. The reason being it is a well-settled law that when
there is any inconsistency between a general and a special law,
the special one would prevail.
Judgment and connected matters
After hearing the arguments of the prosecution and defence
the Court will give judgement in a case. It is the stage where
the accused is either acquitted or convicted.
Judgment

CrPC P a g e 114 | 249

As per Section 235, a Judge will pronounce a judgement of
acquittal or conviction after hearing the arguments of both the
parties i.e, the prosecution and defence and on point of law (if
any). However, considering the character of the offender, the
circumstances of the case and the nature of the offence, the
Judge may as per Section 360 decide to release the offender on
probation of good conduct. If the accused is acquitted, the
acquittal will be done according to the procedure laid down
under Section 232 and if he is convicted he shall be dealt
according to Section 235.

In Narpal Singh v. State of Haryana it was held that, in case of

non-compliance with this provision, the case may be remanded
to the Sessions Judge for retrial on the question of sentence
only. It is not necessary for the Judge to hold a new trial
altogether it will be restricted to the question of sentence
only.
Procedure to follow the order of conviction
After conviction, the Judge will hear the accused and then pass
a sentence under Section 235. The Judge while passing a
sentence shall try to gather all information that influences or
relates to the sentence of the accused. The provisions of
Section 235(2) are mandatory and should be complied with
strictly as held by the Court. The purpose of Section 235 is to
offer a chance to the accused to adduce evidence of any
mitigating circumstances in his favour. The accused should be
explicitly asked with respect to what he needs to state about
his sentence and whether he wants to give any proof on his
side in order to mitigate his sentence.

On this point, the Apex Court in Santa Singh v. State of

Punjab held that the Judge should first pass a sentence of
conviction or acquittal. If the accused is convicted he shall be
heard on the question of sentence and only then the Court shall
proceed to pass a sentence against him.

In Bacchan Singh v. State of Punjab, it was ruled by the Court

that this Section provides for a bifurcated trial and specifically
gives to the accused person a right of pre-sentence hearing
which may not be strictly relevant to or connected with the
particular crime under inquiry but may have a bearing on the
choice of the sentence.
CrPC P a g e 115 | 249
Procedure in case of previous conviction
Section 236 talks about previous convictions. It says that if an
accused is charged with a convicted previously under Section
211(7) and he does not admit that he has been previously
convicted with the alleged charge. The Judge after convicting
the accused under Section 229 or Section 235 may call for
evidence of the accused of such previous conviction and shall
record findings, in case the accused is liable to enhanced
punishment or punishment of a different kind. The proviso to
this Section mentions that such charge shall not be read out by
the Judge, nor shall the accused be asked to plead nor shall the
prosecution refer to such previous conviction.
Section 236 provides for a special procedure for determining
liability to enhanced punishment as a consequence of previous
conviction. Also, prohibiting the proof of previous conviction to
be given until and unless the accused is convicted, is to prevent
the accused from being prejudiced at the trial.

Procedures in cases of defamation of high dignitaries

and public servants
Under Section 199(2) the Court of Session may take cognizance
of an offence, without the case being committed to it when any
offence of defamation is committed against a person who is at
that time, President of India, the Vice-President of India,
Governor of a State, or any Public servant in the Union or State
when a complaint is made to it by the Public Prosecutor in
writing.
Section 237 requires the Court of Sessions to try the case in
accordance with the procedure for trial of warrant-cases
instituted otherwise than on a police report before a Magistrate
Court when it takes cognizance of an offence under Section 199
(2).

The proviso to Section 237(1) says that a person shall be

examined as a prosecution witness against whom the offence is
alleged to have been committed unless the Court of Session
otherwise directs. The Court has to record the reasons for it.
Each trial under Section 237 is to be conducted in camera if the
Court thinks or if either of the party so desires. If the Court
discharges or acquits all or any of the accused and the Court
thinks that there is no reasonable cause of making an
accusation against the accused or any of them. A show-cause
CrPC P a g e 116 | 249
notice for grant of compensation may be issued to those
allegedly defamed.

The Court awards compensation to the accused or any of them

up to one thousand rupees after considering the show cause
and recording reasons for the same. The compensation
awarded shall be recovered as if it were a fine imposed by the
magistrate. A person who has been made liable to pay
compensation shall not be exempted from any civil or criminal
liability. If any sum has already been paid to the accused that
sum shall be taken into consideration while paying
compensation in any subsequent proceeding relating to the
same matter.

The award of compensation does not apply to President, Vice-

President, Governor of the State or Administrator of Union
territory.
A person can also appeal to the High Court against the order of
the Court under this Section.

What is complaint? Explain the procedure to be followed

on receiving a complaint.

COMPLAINT & ITS PROCEDURE TO BE FOLLOWED BY THE

MAGISTRATE ON RECEIPT OF COMPLAINT: CrPC
INTRODUCTION:
Section 2(d) of the CRPC 1973 defines the Complaint. According
to this section, "any allegation made orally or in having written
to a Magistrate, to act decisively under this Crpc, that certain
person, regardless of whether known or unfamiliar, has broken
a law, but does not involve a police statement or record."
Essentials of a Legitimate Complaint:
1. A complaint must include an allegation that the offender
committed an offence.
2. The complaint can be made either written or verbal.
3. A complaint should be filed with a Magistrate.
4. The complaint must be designed in order for the
Magistrate to take action.

CrPC P a g e 117 | 249

Cognizance By Magistrate (Section 190):
Cognizance is defined as "knowledge or notice" in general, and
taking cognizance of criminal acts as "taking note of, or
becoming aware of, the suspected conduct of an infraction."
The definition of cognizance in the dictionary is "judicial hearing
of a subject." Before proceeding with the trial, the judicial
official must take cognizance of the offence. Taking cognizance
is not a formal activity, but occurs when a magistrate applies
his attention to the alleged conduct of a crime for legal
proceedings. Taking cognizance is thus considered to involve
the application of judicial intellect.
It involves the purpose to initiate a judicial proceeding in
connection with an offence or taking efforts to determine if
there is a basis for initiating the judicial proceeding. It is self-
evident that even before taking notice, the court must
determine whether the elements of the offence accused are
present or not. A court can only take cognizance once before
becoming functus officio.
If a magistrate tends to involve his mind not for the purpose of
proceeding as described above, but for taking some other
action, such as ordering an investigation under Section 156(3)
or issuing a warrant to search for the intent to investigate, he
could not be said to have taken cognizance of said offence.
The phrase "cognizance of offence" is not described with
in the CRPC. Sections 190-199 deal with the techniques and
constraints under which different criminal courts are
constituted to take cognizance of crimes. The meaning of the
phrase, however, is very well determined by the Courts. Taking
notice is perhaps the most important step on the path. Before
proceeding with the conduct or trial, the judicial official must
take cognizance of the offence.
According to Sec. 190, any Magistrate of first class or Second
Class might take account of any offence: When a complaint of
facts pertaining to offences is received; according to police
reports. On the basis of information obtained from an individual
(besides a police officer) or even his own expertise. Sections
200-203 discuss filing a complaint with a magistrate.
In the CRPC 1973, Sections 200–203 deal with complaint to the
magistrate.

CrPC P a g e 118 | 249

Section 200 Complainant Examination:
When a Magistrate takes cognizance of an offence based on a
complaint, the very first step is to analyze the complainant and
any witnesses present, and the matter will be reduced to
writing the investigation and having to sign this by the
complainant, witness, as well as the Magistrate.
In “Gurudas Balkrishna v. Chief Judicial Magistrate Goa”, the
applicant submitted a complaint on July 31, 1992, and the
Magistrate did not even register his statement for the
claimant's authentication over several months. It was decided
that Magistrate must record the evidence for both the claimant
and any witness, if any; in less than a week of the order's date,
and also that the magistrate cannot postpone the verification
for months.
Operation By Magistrate Ineligible To Take Cognizance
Of Case (Section201):
If a written complaint is made to a Magistrate who is not
qualified to hear the case, he shall,
 Return the complaint about the demonstration to the
regular Court with authorization to that conclusion.
 If indeed the complaint wasn't in writing, the Magistrate
would then refer the claimant to the appropriate Court.
If such an offence occurs while the Magistrate is present, the
Magistrate does have the authority to take Cognizance of the
crime directly by submitting a complaint or designate his
subordinate to record a formal complaint against accused, as
indicated in Section 153(3) of the CRPC.
The court released the accused in “Rajendra Singh v. State Of
Bihar” on the grounds that the court lacked jurisdiction to react
on the complaint. As a result, the court determined that the
acquittal order was unconstitutional since the court had the
option of returning the complaints about the presentations to
the competent court rather than acquitting the accused.
Section 202 Postponement of Issue of Process:
If the complainant genuinely deems to have an issue with
having to travel, living in the place apart from the area of
jurisdiction, he may apply to the magistrate for postponement

CrPC P a g e 119 | 249

the issue of the process. The magistrate can investigate it
himself or set an inquiry for the police to decide whether this is
a legitimate ground for postponement.
There shall be no order for investigation in case of non-
presence of the witnesses (if any) and the complainant. The
Magistrate may not address the complaint concerning the
investigation if such complaint is solely trial able by Court of
Sessions.
The Supreme Court held in D Lakshminarayan v. Narayana that
a Magistrate who gets a claim revealing an offence only trial
able in Court Of session is not prohibited from referring it to the
police for inquiry under Section 202 CrPc 1973, sub-section (1).
Is it possible for a Magistrate to issue a summons
depending on The Factual information and a Direct
Police Investigation?
According to Section 202 CRPC, the Magistrate can grant action
without the need for a police report based on the facts in the
case. Process can be served in the form of a summon or an
order, as well as the Magistrate has the authority to issue it
after investigating the circumstances. With the 2006
modification to Sec 202 CRPC, it is now the duty of the
Magistrate to conduct the investigation or inquiry because the
defendant may be dwelling within the jurisdiction of the
Magistrate.Section 202 CRPC's
Objective:
Section 202 of the Criminal procedure Code has the following
objectives-
 To establish the facts of said crime.
 To ensure that the Court's time is not wasted.
 To assist the Magistrate in determining if the case's
grounds and proceedings are adequate.
Section 203 Dismissal of Complaint:
If the Magistrate determines that there are insufficient grounds
for proceedings after considering the complainant's and
witnesses' statements under oath, as well as the results of the
inquiry or investigation under S.202, he must therefore dismiss
the complaint and register his explanations for dismissal.
CrPC P a g e 120 | 249
The accused was discharged after evaluating all of the
documents submitted by the complainant in Hansabai
Payagude v. Ananda Payagude, and a new trial was brought
based on the identical circumstances. According to these facts,
the court may not examine this since there is no sufficient
foundation for advancing with the complaint until he is
convinced with some other proof.

Second Complaint:
If the claimant's initial complaint was rejected by the Magistrate
under Section 203, the complainant may submit a second
complaint, but only under certain extraordinary cases involving
the same fact.
Illustration:
'A' filed a complaint with a magistrate, but it was rejected
under Section 203 of the Criminal Procedure Code.
And 'A' filed a second complaint with the same magistrate in
same court, however the court ruled that the complaint can be
heard here, but that if there is some unusual circumstances,
such as:
 The previous complaint disposal ruling was made based on
an insufficient record.
 The circumstances of the incident were misunderstood.
 The decision was made in an unjust manner.
 In relation to the prior procedures, actual information must
be recorded.
 As a result, the second complaint of 'A' in this image was
similar to the first complaint, and it was dismissed.
Effect of Dismissal: The Magistrate does not hold any
authority to reconsider the decision dismissing the initial
complaint, which results into complaint's legal resolution. When
a complaint is dismissed due to a default, it cannot be
reinstated by a dismissing order.
How to contest the complaint: Once the Magistrate issues the
procedure against the defendant, he cannot reverse it. Because
the Criminal procedure Code does not grant the Magistrate the
CrPC P a g e 121 | 249
authority of review, he or she could not evaluate the
proceedings or rescind the summons or warrant.
You cannot submit a recall application under section 203 CRPC
if the court has issued the process. The Supreme Court stated
in Adalat Prasad v. Rooplal Jinda that if the Magistrate did not
dismiss the charge and issued process, the accused could not
ask the courts under section 203 CRPC seeking discharge of the
charge because of stage of section 203 had already passed.
As a result, you are unable to defend the charge under section
203 of the CRPC. At the section 203 stage, the accused is not
heard by the court. At this point, the accused plays no part. In
the lack of a reviewing power, you may file a complaint per
section 482 CRPC. You may seek justice in your case by
invoking the High Court's inherent power under Section 482
CRPC.
References:
1. Bindeshwari Prasad v. Kali Singh AIR 1967 SC 2432.
2. Bholu Ram v. State of Punjab, (2008) 9 SCC 140
3. Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015) 14
SCC 399.

Rights of arrested person.

Arrest Without A Warrant
To make an arrest the police need a warrant. A warrant is a
written affidavit that allows the police to arrest the person
named in it. A judge signs the warrant if the police provide
sufficient grounds of suspicion.
In some cases, if the police suspect a person of committing a
cognizable crime, they can arrest without warrant. If the
accused challenges the warrant, then police officers have to
justify the evidence.
 Right To Silence
According to the Right to silence, it is the choice of accused to
stay quiet and not to say anything until their lawyer is
consulted. This law protects the accused against incrimination
CrPC P a g e 122 | 249
before any conviction is imposed. It is the rights of arrested
person under CRPC to speak about the charges imposed on
them. No one can corrosively extract statements from the
accused, who has the right to remain silent but only in the
court. It is not clear if the arrested can exercise their right to
silence during interrogation by police officers. Police officers
use interrogation techniques like narco-analysis, brain mapping
and lie detection which annul the legality of the Right to
Silence. The Supreme Court in 2010 declared that these tests
violate article 20(3). Article 20(3) states that “no person
accused of any offence shall be compelled to be a witness
against himself.”

 No Unnecessary Restraint
It is the right of an arrested person under CRPC that police
should use no more restraint than is necessary to prevent
escape. Restraint should not lead to death. Before keeping a
person under any form of restraint there must be an arrest.
Using restraints without an arrest is illegal.
 No Detention For More Than 24 Hours
Police should bring the arrested person before the court within
24 hours of the arrest. Police officers cannot detain a person for
more than 24 hours without a warrant. The time period should
not exceed 24 hours excluding the time of the journey from the
place of arrest to the courtroom. Police officers will be held
guilty if there is a violation of this right.
 Right To Free Legal Aid
It is the right of the accused to consult a counsel of their
choice. The government provides them with free legal aid.
Thus, every person has access to a counsel even if they cannot
afford one, to ensure a fair trial.
 Right To Medical Assistance
It is the rights of arrested person under CRPC to get
medically examined so they can efficiently defend and protect
themselves. Only a lady doctor can examine a female. It is the
duty of the person having charge of the accused to take care of
their health and safety.

CrPC P a g e 123 | 249

  Right to Bail
Offences are either bailable or non-bailable. If a person is
arrested for a bailable offence, then they can ask for all the
relevant details of the bail including the information about bail
amount.
 Freedom to Communicate With Magistrate
It is the rights of accused person to freely communicate with
the judge and talk about the issues they are dealing inside the
jail. If a police officer tortures an arrested person they can
complain to the judge.
This right ensures the safety of the prisoners inside the jail.

Explain the procedure to be followed by Criminal Courts

in compelling the appearance of a person.
Ways for processes to compel a person to appear in court they
are
1) Summons
2) Warrant
3) Warrant in lieu of summons
4) Proclamation of an absconder
5) Attachment of his property and
6) Bond with or without sureties to appear before a court on a
certain date.
1) Summons -
Summons is a document issued by a Court of Justice calling
upon the person to whom it is directed to attend before a judge
or officer of the Court. It also means to notify a defendant that
an action has been commenced against him in which he may
file and answer or plead in some other fashion. Summons
should be clear and specified because it is a milder form of
process issued for enforcing the appearance of the accused or
of witness and for the production of a document or thing.
According to Section 61 of the code of criminal procedure,
every summons issued by a court under this Code shall be in
CrPC P a g e 124 | 249
writing, in duplicate, signed by the presiding officer of such
Court, or by such other officer as the High Court may, from time
to time by rule direct and shall bear this seal of the Court.
According to Section 61 of the Code of Criminal Procedure 1973
summons may be sent to - (a) The accused (b) A witness (c) A
person to show cause against some order, and (d) The person
proceeded against under section 125 of the Code.
2) Warrant –
A warrant is a written order of a Magistrate giving official
authority to arrest a suspected criminal or accused person. The
Code of Criminal Procedure does not define the expression
warrant of arrest but it is clear form the code that a warrant is
an order address to a certain person to arrest the accused, to
take him into custody and bring him before the court issuing
the warrant.
3) Warrant in lieu of summons –
According to Section 87 of the Code of Criminal Procedure - A
Court may, in any case in which it is empowered by this Code
to issue a summons for the appearance of any person, issue,
after recording its reasons in writing, a warrant for his arrest-
(a) if, either before the issue of such summons, or after the
issue of the same but before the time fixed for his appearance,
the Court sees reason to believe that he has absconded or will
not obey the summons; or (b) if at such time he fails to appear
and the summons is proved to have been duly served in time to
admit of his appearing in accordance therewith and no
reasonable excuse is offered for such failure.
4) Proclamation of an absconder –
Section 82 of the Code of Criminal Procedure 1973 provides –
(1) If any Court has reason to believe (whether after taking
evidence or not) that any person against whom a warrant has
been issued by it has absconded or is concealing himself so
that such warrant cannot be executed, such Court may public a
written proclamation requiring him to appear at a specified
place and at a specified time not less than thirty days from the
date of publishing such proclamation.
(2) The proclamation shall be published as follows:-

CrPC P a g e 125 | 249

(i) (a) it shall be publicly read in some conspicuous place of the
town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or
homestead in which such person ordinarily resides or to some
conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of
the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the
proclamation to be published in a daily newspaper circulating in
the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation
to the effect that the proclamation was duly published on a
specified day, in the manner specified in clause (I) of sub-
section (2), shall be conclusive evidence that the requirements
of this section have been complied with, and that the
proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in
respect of a person accused of an offence punishable under
section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397,
398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal
Code (45 of 1860), and such person fails to appear at the
specified place and time required by the proclamation, the
Court may, after making such inquiry as it thinks fit, pronounce
him a proclaimed offender and make a declaration to that
effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a
declaration made by the Court under sub-section (4) as they
apply to the proclamation published under sub-section (1).

5) Attachment of his property of person absconding -

Section 83 of the code of criminal procedure provides that -
(1) The Court issuing a proclamation under section 82 may, for
reasons to be recorded in writing, at any time after the issue of
the proclamation, order the attachment of any property,
movable or immovable, or both, belonging to the proclaimed
person: Provided that where at the time of the issue of the
proclamation the Court is satisfied, by affidavit or otherwise

CrPC P a g e 126 | 249

that the person in relation to whom the proclamation is to be
issued, -
(a) is about to dispose of the whole or any part of his property,
or
(b) is about to remove the whole or any part of his property
from the local jurisdiction of the Court, it may order the
attachment simultaneously with the issue of the proclamation.
(2) Such order shall authorize the attachment of any property
belonging to such person within the district in which it is made,
and it shall authorize the attachment of any property belonging
to such person without such district when endorsed by the
District Magistrate within whose district such property is
situated.
(3) If the property ordered to be attached is a debt or other
movable property, the attachment under this section shall be
made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such
property to the proclaimed person or to anyone on his behalf;
on
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the
attachment under this section shall, in the case of land paying
revenue to the State Government, be made through the
Collector of the district in which the land is situated, and in all
other cases-
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent on
delivery of property to the proclaimed person or to anyone on
his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock
or is of a perishable nature, the Court may, if it thinks it

CrPC P a g e 127 | 249

expedient, order immediate sale thereof, and in such case, the
proceeds of the sale shall abide the order of the Court.
(6) The powers, duties, and liabilities of a receiver appointed
under this section shall be the same as those of a receiver
appointed under the Code of Civil Procedure, 1908(5 of 1908).

6) Bond with or without sureties to appear before a court on a

certain date -
Section 88 of the Code of Criminal Procedure deals with the
power to take Bond for appearance. It provides that when any
person for whose appearance or arrest the officer presiding in
any Court is empowered to issue a summons or warrant, is
present in such Court, such officer may require such person to
execute a bond, with or without sureties, for his appearance in
such Court, or any other Court to which the case may be
transferred for trial.
Section 88 of the Code is only applicable to persons who are
present in court but not the person at houses to compel them
to execute bonds for appearance in court with or without
securities where an accused is already in custody, Section 88
has no application.

Explain the provisions relating to maintenance of wives

and children under the Cr.P.C.
Chapter IX: Maintenance Of Wives, Children And Parents
The provision relating to maintenance of Wife, Children and
Parents (section 125-128) is a measure for social justice and fall
within the constitutional sweep of Article 15 (3) [Ramesh
Chandra Kaushal v. Veena Kaushal].

41st Report of Law Commission, 1969:

The provision aims at preventing starvation and vagrancy for
neglected or divorced wives, abandoned children and needy
and helpless parents.
Applicability of the provision on Personal Laws
The provision is applicable to persons belonging to all religions
and have no relationship with the personal law of the parties,
their nationality or domicile (Nanak Chand v. Chandra
CrPC P a g e 128 | 249
Kishore AIR 1970). But the personal law of the parties is
relevant for deciding the validity of the marriage and therefore
cannot be altogether excluded form consideration (Yamunabai
v. Anantrao AIR 1988).

The Constitutional Bench in Mohammad Ahmed Khan v. Shah

Bano Begum AIR 1985, opined that the said provision is truly
secular in character and is different from the personal law of
the parties.

Section 125 confers a statutory right and is, therefore, not

affected by personal laws. Thus, a Shia wife under a muta
marriage would be entitled to maintenance under section 125,
although she may not enjoy the right of maintenance under
Muslima Law
Section 125: Person Entitled to Claim Maintenance
a. Wife (minor or major) unable to maintain herself.
Illustration (b) of section 125 (1)- wife includes a woman
who has been divorced or who has obtained divorced and
not remarried.
Interpretation of wife by the Apex court for claim
relief under section 125
Wife means only a legitimate or legally wedded wife.
Legality of the marriage would be governed by the
personal law applicable to the parties (Yamunabai v.
Anantrao)

Strict proof of marriage is not sine quo non in considering

relief under section 125. However, man and woman must
live together as husband and wife for reasonably a long
period of time (Chanmuniya v Virender Kumar Singh
Kushwaha) & Justice V.S. Malimath committee report
2003.

Under the old Code, a divorced wife was not entitled to

maintenance but now they are entitled (Shah Bano Begum
Case). Further, a woman divorced before April 1, 1973
(date of coming into force of this code), could claim
maintenance (Md. Haneef v. Anisa Khatoon)

The standard of proof of marriage in section 125

CrPC P a g e 129 | 249
 proceeding is not as strict as required in a trail for an
offence under section 494 of IPC,1860 and the remedy is
summary in nature (Dwarika Prasad Satpathy case)

Objectives:
o To prevent vagrancy and destitution (Vimala v. Veera
swamy)
o To provide speedy remedy for the supply of food,
clothing and shelter to deserted wife

b. Mino Child (legitimate or illegitimate) whether

married or not, unable to maintain itself
Illustration (a) of section 125 (1):
o A minor means a person who has not attained age of
majority according to Indian Majority Act, 1875.
o Interpretation of minor child by Apex Court for relief
under section 125
o Minor includes female married daughter whose
husband doesn't hve sufficient means to maintain her
o No order of maintenance could be passed for child in
the foetus

c. legitimate or illegitimate child (not being married

daughter) is entitled to claim maintenance even after
attaining majority if by reason of any physical or mental
abnormality or injury it is unable to maintain itself.
A minor child could claim maintenance from father living
abroad (Priyal v. Dr. Pradeep K. Kamboj).

d. Father or Mother unable to maintain himself or

herself
Interpretation of Father & Mother by Apex Court for relief
under section 125

Children includes son as well as daughter so even

daughter is liable to maintain her parents (Vijaya Manohar
Arbat Case)

CrPC P a g e 130 | 249

 Sec 3 (20) of General Clause Act, 1897, the word 'father'
includes adoptive father. So, adoptive father is also
entitled to claim maintenance from the children. Even,
adoptive mother is entitled to claim maintenance (Baban
v. Parvatibai). However, Mother does not include
Stepmother (Ramabai v. Dinesh)

But Supreme Court in Kirtikant v. State of Gujarat, held

that a childless stepmother may claim maintenance from
her step son provided she is a widow or her husband, if
living, is also incapable of supporting and maintaining her.
Basis for the Claim of Maintenance
Sufficient means to maintain: An order under section 125 can
only be passed if a person 'having sufficient means' neglects to
maintain the person or persons claiming maintenance. If a
person is abled then unemployment, insolvent or professional
beggar cannot be the grounds to get relieved from his
obligation (Chander Prakash v. Sheela Rani)

Neglect or Refusal to maintain: Neglect is used in a wider sense

so as to include disregard of duty whether willful or intentional
(Ishar v. Soma Devi). Offer of the husband to maintain his first
wife on a condition of living her with his second wife is neglect
or refusal to maintain his first wife (Chand Begum v. Hyder
Baig)
Claimant must be Unable to Maintain himself or herself: If a
wife is educated and healthy but willfully refuses to earn and
claims maintenance then she will be entitled to maintenance
but circumstance would disentitle her to get full amount of
maintenance. Children cannot refuse or neglect to maintain
disabled father or mother on the ground that they didn't fulfill
the parental obligation.
Interim Maintenance
Under section 125 (2), the Magistrate may, during the
pendency of the proceeding, allow reasonable interim
maintenance and expenses of the proceedings to the applicant.
Provided that such application shall be disposed of within sixty
days from the date of service of notice of the application to
such person.

CrPC P a g e 131 | 249

Remedies for the Enforcement of Order of Maintenance
Section 125 (3) provides two modes of execution of
maintenance order:
Issue a warrant for levying fines:
Sentence such person to imprisonment for a term which may
extend to one month or until payment if sooner made
Provided that no such warrant shall be issued unless the
application is made to the court within a period of one year
from the date on which such amount became due.
Wives not entitled to claim maintenance or interim
maintenance
Section 125 (4) provides that no wife shall be entitled to
maintenance if…
1. Living in adultery: Isolated acts of adultery even if
frequent, do not amount to living in adultery.
2. Refuses to live with her husband: Refusal must be without
sufficient reason
3. Living separately by mutual consent: Even in such cases
children living with mother can claim maintenance.

Quantum of Maintenance
Amendment Act no. 50 of 2001-no maximum limit for
maintenance amount has been fixed. Magistrate may order
such monthly rate as he thinks fit. The rate may be altered
under section 127 based on change of circumstances.
Alteration and Cancellation of Maintenance Order
 Section 127 (1), an order of maintenance may be altered
or cancelled upon change in circumstances
 Section 127 (2) an order can be varied in consequence of
any decision of a competent civil court
 Section 127 (3) an order of maintenance may be cancelled
when:
a. wife remarries

CrPC P a g e 132 | 249

 b. wife has received the whole sum under customary or
personal law
c. wife has voluntarily surrender her right to
maintenance after her divorce

Section 125 (5), the magistrate may, on proof, cancel an order

of maintenance if wife started living in adultery, refuses to live
with her husband without sufficient cause or if they are living
separately by mutual consent.
Section 126: Procedure (Jurisdictional Rule)
Wife can sue her husband for maintenance:
a. At any place where he is
b. At the place where he or his wife resides
c. At the place where he last resided with his wife or with the
mother of the child, in case the child is illegitimate
Section 126 (2) all evidences to such proceeding shall be taken
in the present of the person or his pleader (if attendance
dispensed) against whom an order of maintenance is proposed
to be made and it shall be recorded in the manner of the
summon cases.

Provided that if person is willfully avoiding service or willfully

neglecting to appear then magistrate may proceed ex parte but
such order may be set aside within three months on sufficient
cause being shown up.
Section 126 (3) the court dealing with an application under
section 125 shall have power to make such order as to costs as
may be just.

Conclusion
The provision relating to maintenance under any personal law
is separate and distinct. There is no conflict between the two
provisions. If a person has already obtained maintenance under
his or her personal law then magistrate while fixing the amount
of maintenance may take that into consideration while fixing of
quantum of maintenance under section 125 the code.

However, if the marriage is declared void under section 11 of

HMA, 1955 then the wife is not entitled to claim maintenance

CrPC P a g e 133 | 249

under this code. But she can claim maintenance under section
25 of HMA, 1955

Section 125 (1) (d) mentions 'father' or 'mother', and does not
use the word 'parents'. This means that the obligation to
maintain father or mother is only that of a legitimate child, and
not that of an illegitimate child.

Nature of Maintenance Proceeding- It is civil in nature. An

inquiry under section 125-126 is not a trial, nor the result of
such inquiry can be considered as a conviction or acquittal.
Therefore, section 300 of the code does not apply and a second
application under section 125 is not barred.

Period of Limitation: No, period of limitation has been

prescribed for filing an application for maintenance.

Consequences of the death of Husband: A claim for

arrears of maintenance abates on the death of the
husband and cannot be thereafter enforced against his
estate (Ead Ali v. Lal Bibi)

Explain the form and contents of a judgement and in

what manner judgement is to be delivered.
THE JUDGMENT :
1. Contents of a judgment:-
In all cases a judgment must be drawn up containing
(1) the point or points for determination,
(2) the decision thereon, and
(3) the reasons for the decision.
In case of a conviction, the judgment should separately indicate
the offence involved and the sentence awarded. In case there
are multiple accused, each of them should be dealt with
separately. In case of acquittal and if the accused is in
confinement, a direction should be given to set the accused at
liberty, unless such accused is in custody in any other case.
Every judgment should contain the following: -
CrPC P a g e 134 | 249
a) Start with a preface showing the names of parties.
b) A tabular statement as per FORM 'B' appended at the end of
this chapter.
c) An appendix giving the list of prosecution witnesses, defence
witnesses, Court witnesses, Prosecution Exhibits, Defence
Exhibits and Court Exhibits and Material Objects.
In the judgment the accused, witnesses, exhibits and material
objects should be referred to by their nomenclature or number
and not only by their names or otherwise. Wherever, there is a
need to refer to the accused or witnesses by their name, the
number should be indicated within brackets.”
1. Judgment should be dated, signed and pronounced in the
presence of the accused
2. The judgment should be written in the language of the
Court or in English; it should be pronounced in open Court,
and dated and signed by the presiding officer at the time
it is pronounced. Except where the attendance of the
accused has been dispensed with during the trial, and the
sentence to be passed is one of fine only or when the
judgment is one of acquittal the accused should be in
attendance when judgment is pronounced.
3. No Court has power to alter or review a judgment once
signed except for the purpose of correcting a clerical error,
or for the purpose of revising a sentence of whipping
under sections 394 and 395 of the Code.
4. Judgment not written by the Magistrate:- When the
judgment is not written by the presiding officer with his
own hand every page of it shall be signed by him.
5. Pronouncement of judgment before a spell of holidays:- All
cases in which an accused person is likely to be convicted
and sentenced to imprisonment before a spell of four or
more holidays should be decided at least two days before
the commencement of the holidays and arrangements
should be made for supply, free of cost, of copies in such
Vol. III. Chp.- 1 Part-H -2- cases forthwith to the person
convicted to enable him to apply for bail before the
commencement of the holidays.
6. Judgments not be written at home:- Magistrates should not
write judgments at their houses during court hours even
though they have no cases fixed for hearing.

CrPC P a g e 135 | 249

7. Copy of judgment to be supplied to accused free of cost in
some cases:- The judgment must be explained to the
accused. In view of sub-section (4) of Section 371,
Whenever an accused person is sentenced to
imprisonment, then, without prejudice to the provisions of
sub- sections (1) and (2) of that Section, a copy of the
finding and sentence shall be given to the accused, free of
cost, soon after the delivery of the judgment.
8. Accused sentenced to death to be informed about the
right and period of appeal:- When the accused is
sentenced to death and an appeal lies the Court should
inform the accused of the period within which, if he wishes
to appeal his appeal should be preferred.
9. Numbering of paragraphs:- The judgment should be
written in paragraphs and each paragraph should be
numbered in seriatim. The Presiding Officers, may, in their
discretion, organize the judgment into different sections.
[1] Rule (viii) substituted vide C.S. no. 40 Rules/II.D4 dated
10.12.2021}.
10. Sentences:- The question of sentence requires careful
consideration in each case. The presiding officer should
see that the sentence passed is legal and appropriate.
11. Criminal powers of the courts should be noted in the
record and final order:-Every judicial Officer hearing,
conducting or deciding a criminal proceeding, trial or
appeal is responsible that the record and the final order in
such criminal proceedings, trial or appeal shall disclose
the criminal powers which such officer exercised in
hearing or deciding such proceeding, trial or appeal.
12. Powers of various criminal court:- The powers referred
to in the above rule are the following:- (a) Magistrate, third
class. (b) Magistrate, second class. (c) Magistrate, first
class. (d) Magistrate, empowered under section 30 of the
Code (e) of Criminal Procedure. (f) Additional District
Magistrate. ( f ) District Magistrate. (g) Additional Sessions
Judge. (h) Assistant Sessions Judge. (i) Sessions Judge. (j)
Special Judge appointed under the Criminal Law
Amendment Act, Vol. III. Chp.- 1 Part-H -3- 1952 (XLVI of
1952). (k) Special Magistrates of first, second or third
class. (l) Bench of Magistrates, first, second or third class.
13. Special powers to be noted on the record and final
order:- When an officer exercises powers specially,
CrPC P a g e 136 | 249
 conferred,-for example, the powers to try cases
summarily, or the power to pass sentences of whipping in
the case of a magistrate of the second class, the record
and final order in any criminal proceeding or trial shall
disclose the fact that such officer is specially empowered
in that behalf.
14. Separate judgments in riot cases:- In riot cases in which
members of opposite factions are separately tried,
separate judgments should be recorded.
15. Criticism on the conduct of police and other officers:- It
is undesirable for Courts to make remarks censuring the
action of police Officers unless such remarks are strictly
relevant to the case. It is to be observed that the Police
have great difficulties to contend with in this country,
chiefly because they receive little sympathy or assistance
from the people in their efforts to detect crime.
Nothing can be more disheartening to them than to find
that, when they have worked up a case, they are regarded
with distrust by the courts; that the smallest irregularity is
magnified into a grave misconduct and that every
allegation of ill-usage is readily accepted as true. That
such allegations may sometimes be true it is impossible to
deny but on a closer scrutiny they are generally found to
be far more often false. There should not be an over-
alacrity on the part of Judicial Officers to believe anything
and everything against the police; but if it be proved that
the police have manufactured evidence by extorting
confessions or tutoring witnesses they can hardly be too
severely punished.

Whenever a Magistrate finds it necessary to make any

criticism on the work and conduct, of any Government
servant he should send a copy of his judgment to the
District Magistrate who will forward a copy of it to the
Registrar, High Court, accompanied by a covering letter
giving reference to the Home Secretary's circular letter No.
920-J- 36/14753, dated the 15th April, 1936. Similarly,
Sessions Judges shall also send a copy of their judgment
containing criticism of the work and conduct of police
officers to the District Magistrate. They shall also send a
copy of the judgment direct to the High Court
accompanied by a covering letter giving reference to the
CrPC P a g e 137 | 249
 High Court circular letter No 1585- Gaz. / XXXI-2, dated the
14th February , 1936. Award of Compensation and Costs.
16. Award of Costs:- Certain of the costs incurred by a
complainant in a complaint of a non-cognizable offence
may he recovered from a convicted accused in the manner
provided in section 546-A of the Code. The costs incurred
in enforcing an order of a magistrate for the removal of a
nuisance Vol. III. Chp.- 1 Part-H -4- may be recovered from
the person against whom the order is made in the event of
his disobeying the order. [Section 140(2)].
17. The costs incurred by any party in the proceedings
relating to dispute as to immovable property under
Chapter XII of the Code, may be awarded to him against
any other party by the magistrate. [Section 148 (3)], and
may be realised as if the amount awarded was a fine.
(Section 547). The costs incurred in proceedings under
sections 87 to 89 of the Code, in dealing with the property
of persons absconding to avoid process, may he recovered
from such property. (Section 89).
18. Application of fine towards costs and compensation:-
When a fine is imposed by a criminal court, the Court may
order the whole or any part of the fine recovered to be
applied:-
(a) in defraying expenses properly incurred in the
prosecution; (b) in compensation for any loss or injury
caused by the offence committed, where substantial
compensation is, in the opinion of the Court; recoverable
by civil suit.
(b) in compensating the heirs of a person whose death has
been caused by the offence tried when such heirs are
entitled to recover damages under the Fatal Accidents
Act,1855, from the person convicted for the commission
or abetment of the offence.
(c) in compensating a bona fide purchaser of stolen property
(Section 545). Compensation not to be paid until appeal
decided: - If the fine is imposed in a case which is subject
to appeal, the compensation must not be paid away until
the period for appeal has elapsed, or, if an appeal is
presented, before it is decided. Cases have occurred
when the lower court has paid the compensation in
ignorance of the fact that an appeal has been lodged and
later on when an appeal the amount has been reduced or
CrPC P a g e 138 | 249
 remitted, it has become impossible to obtain a refund
from the complainants. Therefore, the lower courts should
not pay compensation to the complainant until they are
satisfied by examining the records of the case and
making a reference to the appellate court that no appeal
or revision has been lodged. Compensation so awarded
must be taken into account in any subsequent civil suit
relating to the same matter (sections 545 and 546 of the
Code).

18) Award of compensation to accused:-

(i) In the case of any offence triable by a magistrate and
instituted upon complaint or upon in- formation given to a
Police Officer or to a magistrate, if the Court discharges or
acquits all or any of the accused and is of opinion that the
accusation against them or any of them was false and either
frivolous or vexatious, the Court by its order of discharge or
acquittal,
(a) if the complainant or informant is present, may call upon
him forthwith to show cause why he should not pay
compensation to such or each of such accused or,
(b) if he is not present, may direct the issue of a summons to
him to appear and to show cause.
(ii). After recording and considering any cause, which may be
shown, the magistrate if satisfied that the accusation was of
the character aforesaid, may, for reasons to be recorded;
direct the complainant or informant to pay to the accused or
to each or any of them compensation not exceeding one half
of the amount of fine that the magistrate is empowered to
impose.
(iii). Simple imprisonment not exceeding thirty days may also
be ordered in default of payment. An order for payment of
such compensation shall not exempt the complainant or
informant form any civil or criminal liability incurred by him
by reason of his complaint or information, but any amount
paid in obedience to such order must be taken into account
in any subsequent civil suit relating to the matter.
(iv). An appeal is provided for in cases where the order is by
a magistrate of the second or third class and where any
CrPC P a g e 139 | 249
other magistrate has ordered the payment of compensation
exceeding Rs. 50. Where no appeal lies the amount of
compensation shall not be paid to the accused person or
persons until the expiration of one month from the date of
the order. In other cases if shall not be paid until the period
allowed for appeal has elapsed or the appeal has been
decided. (Section 250 of the Code as amended by Act 26 of
1955).
(v). If this provision of the law is enforced with discretion, it
may be expected largely to reduce the number of groundless
and frivolous complaints filed. In fixing the amount of
compensation awarded, the Court should be careful to
consider the position of the accused as Well as that of the
complainant. Excessive amounts should not be awarded.
19) Compounding of offences Acquittal of accused
when offence is compounded:-
The compounding of an offence under section 345 of the
Code of Criminal Procedure, with or without the permission of
the Court, has, the effect of an acquittal. In such cases, no
judgment on facts is needed, but the statement of all the
parties concerned must be recorded and in cases where
permission of the Court is necessary for compounding the
offence the reasons for granting permission should be stated
in the order directing the acquittal of the accused.
Act 26 of 1955 has added certain offences to the table given
in sub-section (2) of Section 345 of the Code so that a much
larger number of offences can now be compounded with the
permission of the Court.
Thefts and Criminal breaches of trust of property of a value
not exceeding rupees two hundred and fifty and fraudulent
executions of deeds and dispositions of property to save it
from creditors or for other ulterior purposes and mischiefs to
cattle and animals where the value is small and certain other
offences may now be compounded with the Court's
permission.
Compounding of cases of grievous hurt should be
discouraged:- There is a growing tendency to allow cases
of grievous hurt to be compounded, and from inquiries made
it appears that in most districts magistrates are too prone to

CrPC P a g e 140 | 249

allow cases of the kind enumerated in section 345(2) of the
Code of Criminal Procedure to be compounded, when the
complainant asks for it.
In some instances, this may be due to ignorance of the fact
that the law allows the Courts discretion to grant or refuse
permission to compound, but there are indications that it is
sometimes due to the desire of magistrates to get the cases
disposed of as quickly as possible.
The effect of this practice must clearly be bad, and in
districts where the people are naturally turbulent and
addicted to settling their disputes by force it must encourage
crimes of violence.
Points to be remembered before a compromise is
permitted:- The facts of the each case require careful
consideration before a compromise is permitted. In
particular, the following points should be considered:-
(a) Whether the assault was premeditated.
(b) Whether it, was provoked in any way by the complainant?
(c) The nature and extent of the injury inflicted.
(d) The nature of the weapon or means used.
(e) Whether the compromise is the result of a genuine
reconciliation, or caused by undue pressure on the
complainant.
(f) The relationship, if any, between the parties.
(g) The extent to which violent crime is prevalent in the
locality. In districts where crime of violence are common, the
interests of society demand that permission to compound
should ordinarily be refused when serious Injury has been
caused, and a deterrent sentence of imprisonment should be
awarded, except when the assault has been provoked by any
act of the person injured. In every case in which a magistrate
allows the parties to compromise, his reason should be
recorded in his order.

CrPC P a g e 141 | 249

Explain the provisions relating to removal of public
nuisance under the Criminal Procedure Code.
Public nuisance vs. private nuisance
In order to understand the essential ingredients of this
provision, it is first important to understand the difference
between public nuisance and private nuisance. Public nuisance
is defined under Section 268 of the Indian Penal Code, 1860.
Accordingly, when any offence is committed against the public
that causes an injury, harm, or even annoyance to a larger
public who occupy a common area, it is termed “public
nuisance.” Therefore, it is a crime against society and not just
against an individual or a group of people. For instance,
polluting water streams, obstruction of highways, and storing
explosives are examples of public nuisance. Private nuisance,
on the other hand, does not affect the public at large but only
affects a few individuals.
Section 133 CrPC and its meaning
According to the provision, a District Magistrate, a Sub-
Divisional Magistrate or even any other Executive Magistrate as
specified by the State Government is empowered to do the
following provided sufficient evidence has been presented:
 That any nuisance causing any obstruction should be
removed from any public place, channel or river that
lawfully belongs to the public.
 That conducting a trade, occupation, or possession of
certain merchandise has a direct negative impact on the
physical comfort of the public and, in consequence, the
carrying out of such a trade, occupation or possession of
such merchandise must be prohibited.
 That the construction of any property or the disposal of
substances in connection with such construction is likely
to result in an explosion and therefore must be stopped or
prevented.
 That any building, tree, or structure is likely to fall and
cause damage, and therefore the repair, removal, or
support of such a building, tree or structure becomes
necessary.

CrPC P a g e 142 | 249

  That any dangerous animal must be confined or disposed
of as the case may be.
 That any well, excavation or tank that causes any
obstruction to the public shall be accordingly removed to
prevent any danger to the public.
Therefore, as per Section 133 CrPC, a magistrate can take
action if any information regarding any nuisance is received
through either a police report or any other credible source. It is
also interesting to note that an order made under this provision
cannot be challenged before a Civil Court and is therefore
considered to be a rigorous remedy against public nuisance.
Moreover, the provision also clarifies that a “public place”
includes property that belongs to the State, camping grounds,
or even grounds that are left unused for sanitary or recreational
activities.
Remedies under Section 133 CrPC
A Magistrate on receiving such information can direct a
conditional order with the following remedies-
 To immediately remove the interference or disturbance
within a reasonable time period.
 To either stop the construction of such a building or
completely dispose of such a building.
 To remove or repair the building or the trees, tents or
structures.
 To fence the pits, tanks or excavations.
 To eliminate or dismantle the animal causing any danger
to the public.
 To stop or control the functioning of any trade/activity by
either ordering the removal of goods or services or
managing the storage of such goods in a prescribed
manner.
Punishment under Section 133 CrPC
Section 268 to 294A of the Indian Penal Code, 1860 provides for
the punishment for offences pertaining to public nuisance. The
offence of public nuisance is punishable except for the offences
laid down in Section 290 of the Indian Penal Code, 1860. Under

CrPC P a g e 143 | 249

this provision, the fine can be extended up to Rs. 200. The
offence under this Section is bailable, non-cognizable and non-
compoundable.

Difference between Section 133 and Section 144 CrPC

Section 133 CrPC is often confused with Section 144
CrPC. Therefore, it becomes critical to understand the
difference between the two provisions. Section 133 CrPC is a
specific provision that deals with offences pertaining to public
nuisance. However, Section 144 CrPC is used to keep a check
on the presence or formation of unlawful assemblies that can
be a danger to public tranquillity and human life. It can also be
used when there is any anticipation of a riot or danger or
annoyance to human life. This provision can be used even when
there is merely an anticipation of danger, provided that such
anticipation is based on material facts.
Firstly, while Section 133 is a more specific provision, Section
144 is a generic and broader provision. Secondly, the order
made under Section 133 is conditional, and on the other hand,
the order made under Section 144 is absolute. In the case
of State of M.P. v. Kedia Leather and Liquor Ltd. and Others
(2003), the Court elaborated on the differences between the
two provisions comprehensively. The Court noted that
proceedings under Section 133 CrPC are of a summary nature
and the offences under this provision are classified as public
nuisance. However, the offences under Section 144 CrPC are
classified as ‘urgent cases of nuisance and apprehended
danger’. The Court further clarified that proceedings under
Section 133 CrPC are civil in nature, whereas the proceedings
under Section 144 CrPC are mostly criminal in nature.
The differences are summarised below:
Section 133 Section 144

It is a specific provision only dealing

Section 144 CrPC is a
with offences pertaining to public
general provision.
nuisance.

The order made is

The order made is conditional.
absolute.

CrPC P a g e 144 | 249

 Proceedings are
Proceedings are civil in nature. mostly criminal in
nature.

In the case of Ram Autar v. State of U.P (1962), the Supreme

Court clarified that Section 133(1)(b) CrPC can only be used
when the trade/occupation is causing an imminent danger to
the health and physical comfort of the public. Therefore, the
noise caused due to the auctioning of vegetables on private
property will not constitute an offence under this Section since
there was no danger to the health or physical comfort of the
locality or community.
Further, the Supreme Court in the case of M/s. Nagarjuna Paper
Mills Ltd. v. Sub-Divisional Magistrate and Revenue Divisional
Officer(1987) held that a Magistrate could not make an order to
remove pollutants from water discharged due to industrial
waste on account of preventing water pollution. This is because
other laws, such as the Water (Prevention and Control of
Pollution) Act, 1974, are exhaustive and were enacted to
specifically deal with such issues. Further, while the remedies
provided under Section 133 CrPC are remedial, the remedies
given under the Act are preventive. Therefore, the powers of a
Sub Divisional Magistrate to make an order under Section 133
CrPC are taken away.
In the case of the State of M.P. v. Kedia Leather and Liquor Ltd.
and Others (2003), the Allahabad High Court clarified the
ambiguity regarding the scope of the term “public nuisance”.
The Court held that the term “public nuisance” cannot be given
a precise definition and the only qualifying factor to constitute
an offence under Section 133 CrPC is to see whether there is
any “imminent danger” to the general public at large. The
Court also clarified that the true role of Section 133 CrPC is in
urgent matters wherein any failure to prevent nuisance by the
magistrate can result in irreparable damage to the public. It
was further held that this section can only be applied when the
nuisance exists and therefore cannot be used in any potential
case of nuisance.
In another important judgement, the High Court of Madras in
the case of the Manager v. the Sub Divisional Magistrate (2008)

CrPC P a g e 145 | 249

gave out some important guidelines pertaining to Section 133
CrPC. These are-
Any order made under Section 133 CrPC must be based only
upon material factors.
The restrictions imposed under such an order must be
reasonable and fair.
Proceedings under this Section cannot be used for the
settlement of private disputes.
An order under Section 133 CrPC can be passed only if there is
any imminent danger to the physical comfort of the public.
This imminent danger must lead to public nuisance.
An order made under Section 133 CrPC cannot be substituted
with civil proceedings.
The provision only comes into play when there is a sense of
urgency and not when the nuisance has been in place for a long
period of time.
In another development, the Jammu and Kashmir High Court in
the case of Girdhari Lal v. State of Jammu and Kashmir (2018)
once again emphasised that Section 133 CrPC cannot be used
to settle private disputes and must be used only to protect the
public from any nuisance.
In a recent Karnataka High Court judgement, the Court in the
case of Achut D. Nayak and Ors v. the Sub Divisional Magistrate
and Anr. (2022) held that a Magistrate exercising power under
Section 133 CrPC must do so only after providing the party with
a reasonable and sufficient opportunity of being heard and
recording evidence in order to arrive at a conclusion that the
actions of the person/party caused any kind of public nuisance.
It was also held by the court that by not recording evidence and
taking the necessary material on record, there could be a
serious miscarriage of justice and abuse of the law.

Irregular proceedings Under CrPC.

1. The purpose of criminal law is to defend and protect the
interests of society among other things.
2. However, there may be some instances where
irregularities have been committed which may be curable
irregularity or incurable irregularity.
CrPC P a g e 146 | 249
3. Section 460 CrPC deals with curable irregularities and
section 461 CrPC deals with incurable irregularities. Not
every irregularity vitiates the trial of a criminal case.
4. It is only that irregularity which has some illegality, which
penetrates to the heart of the case and vitiates the
proceedings. Section 461 of the code deals with such
situations.
5. The Indian criminal law, which deals with matters relating
to violation of prohibited social conduct, strives to deliver
justice by punishing the guilty and providing relief to the
aggrieved parties. The purpose of criminal law is to defend
and protect the interests of society among other things.
6. The criminal law is applied by criminal courts through
statutes, decisions, and other means, with the expectation
that the courts will achieve a final resolution without any
irregularities. However, there may be some instances
where irregularities have been committed which may be
curable irregularity or incurable irregularity.
7. The provisions related to irregular proceedings are
contained in Chapter XXXV CrPC, 1973 containing sections
460-466. Section 460 CrPC deals with curable irregularities
and section 461 CrPC deals with incurable irregularities.
SECTION 460 Section 460 CrPC is referred to cure nine
kinds of irregularities provided they are caused
erroneously and in good faith.
8. A further qualification is implied in this section that the
irregularity should not cause a failure of justice.
9. If a magistrate who’s not empowered by law on this behalf
does any of the following things - Issuing a search- warrant
under section 94; to order, under section 155, the police
to investigate an offence; to hold an inquest under section
176; to issue process under section 187, for the
apprehension of a person within his local jurisdiction who
has committed an offence outside the limits of such
jurisdiction; to take cognizance of an offence under clause
(a) or clause (b) of sub- section (1) of section 190; to make
over a case under sub- section (2) of section 192; to
tender a pardon under section 306; to recall a case and try
it himself under section 410; or to sell property under
section 458 or section 459, erroneously in good faith does
that thing, his proceedings shall not be set aside merely
on the ground of his not being so empowered.
CrPC P a g e 147 | 249
10. SECTION 461 Section 461 CrPC lists 17 kinds of
irregularities, which if committed by any Magistrate, would
result in vitiating the proceedings. No question of good
faith arises here. To put it another way, these are
illegalities which vitiate the proceedings. Legally, such
proceedings have no existence.
11. If the magistrate not having the power to do any of the
following things, namely, attaches and sells property
under section 83; issues a search- warrant for a document,
parcel or other thing in the custody of a postal or
telegraph authority; demands security to keep the peace;
demands security for good behaviour; discharges a person
lawfully bound to be of good behaviour; cancels a bond to
keep the peace; makes an order for maintenance; makes
an order under section 133 as to a local nuisance;
prohibits, under section 143, the repetition or continuance
of a public nuisance; makes an order under Part C or Part
D of Chapter X; takes cognizance of an offence under
clause (c) of sub- section (1) of section 190 tries an
offender; tries an offender summarily; passes a sentence,
under section 325, on proceedings recorded by another
Magistrate; decides an appeal; calls, under section 397,
for proceedings; or revises an order passed under section
446, his proceedings shall be void.
JUDGEMENTS
Ranjeet Srivastava v. State of U.P., 2015 The
Allahabad High Court held that it is clear from the
provisions of Sections 460 and 461 of the Code of Criminal
Procedure that the legislature has classified defects or
irregularities into two categories: (i) curable, which does
not vitiate proceedings, and (ii) incurable, which does
vitiate proceedings.
Dilip Kumar Kundu & others v. Madan Chandra Dey
& another, 1992 In this case, a Division Bench of Calcutta
High Court in a complaint pertaining to an offence under
various provisions of IPC, concluded that the complainant's
examination on firm affirmation is not a need for taking
cognizance, and that a Magistrate's issuing of summons
without examining the complainant on solemn affirmation
is just an irregularity.
Kaushik Chatterjee v. State of Haryana, 2020 The
court ruled in this case that any proceeding that is void
CrPC P a g e 148 | 249
under Section 461 cannot be saved under Section 462.
The focus of Section 461 18 clause (l) is on the "offender"
rather than the "offence." The outcome might have been
different if clause (l) had used the terms "tries an offence"
instead of "tries an offender." The word "offence" appears
three times in Section 460, which specifies nine anomalies
that do not invalidate the proceedings: clauses (b), (d),
and (e) (e).
The word "offender" is never mentioned in Section
460. Section 461, on the other hand, only uses the word
"offence" once, in clause (a), but uses the word "offender"
twice, in clauses (l) and (m). Further stating that it is clear
if an offender is tried by a Magistrate not empowered by
law on that behalf, his proceedings shall be void under
Section 461.

Section 462 do not make the principle contained therein to

have force notwithstanding anything mentioned in Section
461. As a result, a criminal Court's jurisdiction is typically
tied to the crime and, in some situations, to the offender,
as in cases when the perpetrator is a minor (section 27) or
the victim is a woman [the proviso to clause (a) of section
26].

However, Section 461(l) focuses on the criminal rather

than the crime. Section 462 of the Code of 1973 contains
a saving clause that is identical to Section 531 of the Code
of 1898. In light of the aforementioned scheme of the
CrPC, the Court decided that the words "tries an offence"
in section 461 are more appropriate than "tries an
offender" (l). Because section 462 cannot cure a lack of
jurisdiction to try an offence, section 461, logically, may
have included the trial of an offence by a Magistrate who
is not authorised by law to do so as one of the multiple
factors holding the proceedings unlawful.

Whereas, the trial of an offender by a court with no

territorial jurisdiction can be preserved under section 462,
assuming there are no other obstacles to the court trying
the offender" (such as in section 27).

CrPC P a g e 149 | 249

However, Section 461 (l) renders a Magistrate's
proceedings void if he tried a criminal while he was not
authorised by law to do was stated by the court. Section
460 Lalit Chandra Chowdhury vs Emperor, 1911 The
Calcutta High Court held that apart from the requirement
of good faith (as expressly specified in the section), there
is also an implied requirement that such irregularity
should not be a cause of failure of justice. P.C. Mishra vs
State (C.B.I) & anr, 2014 It was held that even if the
Magistrate was not authorised by law to grant a pardon
and the order was made in good faith, it was determined
that the order was protected by Section 460 Cr.P.C.
Section 461 Govind Ram vs. State of Rajasthan, 1997 In
this case it was held that in cases of initial lack of
jurisdiction to the Magistrate, no question of error or good
faith arises as such proceedings have no existence in the
eye of law.

Not every irregularity vitiates the trial of a criminal case. It

is only that irregularity that has some illegality, which
penetrates to the heart of the case and vitiates the
proceedings.

Section 461 of the code deals with such situations. Satpal

v. State of Punjab, 2018 The Punjab-Haryana High Court
stated that section 461(k) of the Criminal Procedure Code
would apply in circumstances where a Magistrate with no
jurisdiction or authority takes cognizance of a matter.
Suresh v. State of Kerala, 2018 Kerala HC noted that
Section 461 Cr.P.C. describes precisely, the terms and the
irregularities that would vitiate the proceedings.

It is clearly mentioned in clause (l) of sub-section(1) of

Section 461 Cr.P.C. that in a situation where a court tries
an offender without being empowered to do so, as per the
mandate in Section 228 Cr.P.C. The accused in this case
ought to have been tried by the Judicial First Class
Magistrate empowered to do so by the Code of Criminal
Procedure and when the same is conducted by the Court
of Sessions, without being empowered to do so,
proceedings are irregular and are void.

CrPC P a g e 150 | 249

Atma Ram v. State of Rajasthan, 2019 Hon’ble
Supreme Court of India has summarised the legal
provisions relating to irregular proceedings as: ‘Chapter
XXXV of the Code deals with “Irregular Proceedings”, and
Section 461 stipulates certain infringements or
irregularities which vitiate proceedings.

Barring those mentioned in Section 461, the thrust of the

Chapter is that any infringement or irregularity would not
vitiate the proceedings unless, as a result of such
infringement or irregularity, great prejudice had
occasioned to the accused.’ The courts’ prime duty is to
evade such circumstances through which the miscarriage
of justice is caused.

The power given in Chapter XXXV should be used properly

and with caution. CONCLUSION Irregular proceedings
mean anything that vitiates the court’s proceedings and
ultimately doesn’t provide relief to the aggrieved person,
there are some sections which deal with the legal
provision of irregular proceedings, i.e. section 460-466
wherein consequences of irregular proceedings and in
regular proceedings are listed.

Some of the situations listed above in which an omission

on a procedural error was ruled to be irregularities did not
vitiate the trial and were appropriate under section 465 of
the code since they did not result in a failure of justice.

It also included some time failure to examine the

complainant on oath, omission to pronounce the
judgement before converting or sentencing the accused,
omission to stay on put date in the judgement at the time
of pronouncing it, adopting the procedure of warrant case
in case tribal as a summon case, omission of the session
judge talking about the cognizance of the case and the
wrong section but convention being ordered by the
competent court under Code section failure to record any
relevant fact of the magistrate, Section 310 of CrPC.

These are just a few examples of the many that can be

cured under sections of irregular proceedings that provide
CrPC P a g e 151 | 249
no prejudice to the accused person.
###################################
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CrPC P a g e 152 | 249

Explain the Constitution and powers of Juvenile
Justice Board.
Juvenile Justice Board
The Juvenile Justice Board is an institutional body
constituted under Section 4 of the JJ Act, 2015. According
to the division of powers, the subject of administration of
criminal justice has been included in the State List (List
II, Schedule VII) of the Indian Constitution. Therefore, one
or more than one Juvenile Justice Board(s) are established
by the State Government for each district. The Board
exercises its powers and discharges functions relating to
the ‘child in conflict with law’ as has been defined
under Section 2(13) of this Act.

Section 4 begins with the ‘saving clause’ which means

that an overriding effect over the Code of Criminal
Procedure,1973 has been given to this provision. It means
that in spite of the provisions mentioned in the Code, the
particular clause (S.4 here) would have a full operation.
Therefore, S.4 is an enabling provision. The
‘notwithstanding clause’ has been discussed in the case
of Chandavarkar Sita Ratna Rao vs. Ashalata S.
Guram (AIR 1987 SC 117).
Under Section 7 of the Act, the procedure in relation to the
Board has been laid down. The Board shall meet and carry
out transactions of business as may be prescribed. It is the
duty of the Board to ensure that all procedures are child
friendly and the venue is not intimidating. If a difference of
opinion arises among the Board members in the interim or
final disposal stage, then there are two options:

Either the majority opinion will prevail or if there is no

majority, then the opinion of the Principal Magistrate will
prevail.
In those circumstances when the Board is not sitting, a
child in conflict with law may be produced before an
individual member. Further, the Board can pass orders
even if any Board member is absent and such orders
cannot be held invalid by the only reason that any
member was absent during any stage of proceedings.
Constitution

CrPC P a g e 153 | 249

 The constitution of the Board has been defined in Section
4(2) of the Act.
Composition of Bench under Juvenile Justice Act, 2015
1. Metropolitan Magistrate or Judicial Magistrate First Class
(Principal Magistrate herein) [not being Chief Metropolitan
Magistrate or Chief Judicial Magistrate]
-Experience Required: 3 years.
2. Two social workers (one being a woman)
-Experience Required: Active involvement for 7 years in
health, education or welfare activities pertaining to
children; OR
-A practising professional with a degree in child
psychology, psychiatry, sociology or law.
It was held by the Himachal Pradesh High Court in the
case of State of Himachal Pradesh vs. Happy (2019 SCC
OnLine HP 700) that judgment passed by a single member
of the Juvenile Justice Board is void ab initio. In this case,
the impugned order was passed by a single Magistrate,
without fulfilling the criteria of the composition required
for the functioning of the Juvenile Justice Board. Therefore,
the order was set aside.
Powers granted to Juvenile Justice Board
The Bench shall have all the powers conferred by the Code
of Criminal Procedure, 1973 on a Metropolitan Magistrate
or a Judicial Magistrate First Class.
Eligibility Criteria for Selection as Member of Juvenile
Justice Board
Under Section 4(4) of the Act, the eligibility criteria for
selection as a Board member has been listed down. It has
been defined in a negative manner.
The person will not be eligible if they:
 Have any past record of violation of human rights or child
rights;
 Were convicted of an offence which involved the ground of
moral turpitude + such conviction has not been reversed
or has not been granted pardon;
 Were removed or dismissed from the services of:
o Either the Central Government or the State Government
o An undertaking/ corporation owned or controlled by the
Central Government or the State Government
 Have ever indulged in the acts of:
o Child abuse
CrPC P a g e 154 | 249
o Child labour
o Any other violation of human rights or immoral act
Training for Members of the Juvenile Justice Board
Under Section 4(5), the onus of sensitizing and providing
training to all the Board Members lies on the State
Government. It is to be ensured that the induction training
is provided within a duration of 60 days from the date of
appointment.
Term of Office for Members of the Juvenile Justice Board
Under Section 4(6) of the Act, the tenure of office for the
Board members and the manner in which they may resign
has been discussed.
Termination/Disqualification of Members of the Juvenile
Justice Board
Under Section 4(7) of the JJ Act, 2015 – the appointment of
any Board member, except the Principal Magistrate, may
be terminated post an inquiry by the State Government if
they:
 were found guilty of misuse of power bestowed upon them
under this Act; or
 failed to attend the Board proceedings consecutively for
three months without valid reasons; or
 failed in attending less than three-fourths of the sittings in
a year; or
 Have become ineligible under sub-section 4 during their
tenure as a member.

Continued………………………………

CrPC P a g e 155 | 249

 Placement of Persons
The Placement of Persons under the JJ Act, 2015 has been
divided into two categories in accordance with Section
5 and 6.

Category 1 Category 2

A person who was below the

A person who ceases to be a
age of 18 years when the
child during an inquiry
offence was committed

If an inquiry has been

initiated in respect of any Any person who has
child under the Act and completed 18 years of age,
during such course of the and is arrested for the
inquiry, if the child commission of an offence
completes the age of 18 when he/she was below 18
years, then the inquiry can years, then such person shall
be continued and orders can be treated like a child during
be passed as if such person the process of inquiry.
was a child.

If the person is not released

on bail by the Board, then
they will have to be placed in
a place of safety during the
inquiry process.
They shall be treated
according to the procedure
prescribed in this Act.

Procedure followed by the Magistrate who is not empowered by

the Act.
The procedure to be followed in these cases has been listed
down in Section 9 of the Act:
1. If any Magistrate who does not have the power to exercise
the powers of the Board under this Act, believes that the
alleged offender brought before him is a child, then he shall,
without any delay:
Record such opinion; and

CrPC P a g e 156 | 249

Send the child immediately to a Board having jurisdiction, along
with the record of such proceedings.
2. If any alleged offender claims before a Court other than the
Juvenile Justice Board, that when the offence was committed:
He/she is a child;
He/she was a child.
OR
If the Court is itself of the opinion that the person was a child
when the offence was committed, then the Court shall take the
following steps:
Make an inquiry;
Take evidence which is essential for determining the age of the
person, but this does not include affidavits.
Record a finding on the matter, which states the age of the
alleged offender.
PROVIDED THAT,
Such a claim can be raised before any court and can be
recognized at any stage – this includes the stage of final
disposal of the case and even after the final disposal.
The claim will be determined according to the provisions of this
Act and the rules made thereunder, even if the person has
ceased to be a child – on or before the date of commencement
of the Act.
3. If the Court concludes that the person who has committed an
offence was a child when the offence was committed, then it
shall send the person to the Board for passing appropriate
orders and sentence in the case. Further, if any orders or
sentences have been passed by the Court, the same will be
deemed to have no effect on the person.
4. If it is required under this section, that a person should be
kept in protective custody, during the process of inquiry
regarding the person’s claim of being a child, then the
person should be placed in a place of safety.
Powers

CrPC P a g e 157 | 249

The Board constituted for any district shall have the power to
deal exclusively with the proceedings under the Act:
In the area of jurisdiction of the Board,
In matters relating to children in conflict with the law.
These powers may be exercised by the High Court or the
Children’s Court, when proceedings under Section 19 come
before them or in appeal, revision or otherwise. It was held in
the case of Hasham Abbas Sayyad vs. Usman Abbas Sayyad
(2007) 2 SCC 355 that an order passed by a magistrate beyond
his jurisdiction would be considered void ab initio.
When an alleged child in conflict with law is produced before
the Board, it shall exercise its power to hold an inquiry
according to the provisions of this Act and may pass orders as it
deems fit under Section 17 and 18 of the JJ Act, 2015.
The Board is also empowered to inquire into heinous offences
under Section 15 of the Act. Such preliminary assessment has
to be disposed of within a period of 3 months from the date of
first production of the child before the Board.
In the case of Puneet S. vs. State of Karnataka (2019 SCC
OnLine Kar 1835), the Karnataka High Court held that only the
Juvenile Justice Board has the power to decide whether an
offence committed by a juvenile is heinous or not.
FUNCTIONS:
Sr.
Functions
No.

Ensuring informed participation of the child & the parent

01
or the guardian throughout the process

Ensuring protection of the child’s rights throughout the

02 process of arresting the child, inquiry, aftercare and
rehabilitation

Ensuring the availability of legal aid for the child through

03
various legal services institutions

Providing a qualified interpreter or translator to the child

04 if he/she fails to understand the language during the
course of proceedings

CrPC P a g e 158 | 249

 Directing Probation Officer/Child Welfare Officer/Social
Worker to undertake a social investigation into the case.
05 Further, directing them to submit the report within 15
days from the date of the first production before the
Board.

Adjudicating and disposing of cases pertaining to

06 children in conflict with the law according to the process
mentioned in Section 14

Transferring matters to the Committee in cases where

07 the child is alleged to be in conflict with the law, but is
stated to be in need of care and protection at any stage

Disposing of the matter and passing a final order which

should include an individual care plan for the child’s
08
rehabilitation. This also includes follow-ups by officers or
an NGO.

Conducting inquiry for declaring that a certain person is

09
fit for taking care of the child in conflict with the law

Conducting inspection every month of residential

facilities for children in conflict with the law and
10
recommending various measures for improvement in the
quality of services provided

Ordering the police for registration of FIR if any offence is

11
committed against any child in conflict with the law

Conducting a regular inspection of jails meant for adults,

12
to check if any child is lodged in such jails

Taking immediate measures for the transfer of a child

13
found in jails for adults, to an observation home

14 Any other function as may be prescribed to the Board

Any child who is in conflict with law cannot be kept in police

lock-up or jail under any circumstances. The Supreme Court
said that Juvenile Justice Boards should not be ‘silent
spectators’, in the case Re: Exploitation of Children in

CrPC P a g e 159 | 249

Orphanages in the State of Tamil Nadu vs. Union of India and
Ors.

Bail of Juvenile in conflict with law.

Ans:
Relevant Definitions
Board: The Juvenile Justice Board was constituted
under Section 4 of Juvenile Justice Act, 2015. It is a competent
authority which deals with the matters pertaining to children in
conflict with the law and takes appropriate steps for
rehabilitation.
Child Welfare Police Officer: Such an officer is designated in
every police station, who is not below the rank of assistant sub-
inspector. He deals exclusively with cases pertaining to
juveniles in coordination with the police authorities and NGOs.
Children’s Court: The courts are established under
the Commission of Protection of Child Rights Act 2005 or under
the Protection of Children from Sexual offenses Act, 2012. If at
all the court is not existing, the sessions court will have
jurisdiction to deal with the matter.
Probation Officer: Such an officer is appointed by the state
government as a probation officer under the Probation of
Offenders Act, 1958.
Special Juvenile Police Unit: They are present in each district
in order to deal with the victims or perpetrators of the crime.
They are designated as Child welfare Police officers in every
Police Station.
Procedure in relation to Children in Conflict with Law
Chapter IV of the Juvenile Justice Act, 2015 talks about the
Procedure in Relation to Children in Conflict in Law.
The apprehension of a child alleged to be in conflict with the
law

CrPC P a g e 160 | 249

Section 10 of the Juvenile Justice(Care and Protection of Children )
Act talks about the apprehension of a child alleged to be in
conflict with the law.
The following is the Stepwise procedure to be followed for the
apprehension of the child in a conflict of law:
1. Firstly, the police will inform the Special Juvenile Police
Unit about the same. After this, the case will be forwarded
to Child Welfare Police Officer of the concerned police
station and in order to keep a record of the case, there will
be an entry made in the track child portal.
2. Secondly, there will be the filing of DDR in case of Petty
offense, an FIR will be filed for serious crimes or heinous
crimes which will depend upon the nature of offense which
the alleged child has committed.
Note: FIR is recorded by the police for cases involving
cognizable offenses. The other reports records and cases
involving non-cognizable offenses are recorded in daily diary
register (DDR).
1. Thirdly, the child will be sent for a medical examination.
This examination shall be carried out by designated Child
Wellbeing and Protection Officer (CWPO) or Special
Juvenile Police Unit (SJPU). Furthermore, the information
about the apprehension shall be sent to the parents and
Probation officer to carry out the investigation.
2. Fourthly, the alleged child shall be produced before a
Juvenile Justice Board within 24 hours by the designated
Child Welfare Police officer. However, if the board is not in
session, the child alleged to be in conflict with the law will
be produced before a single member of the Board.
3. Fifthly, after the child has been produced before the
relevant authority, for the time being, the child may be
sent to Observation Home/ Place of Safety for temporary
shelter or the child may be bailed out of the board.
4. Sixthly, the designated Child Wellbeing and Protection
Officer (CWPO) shall forward the information to DCPU and
SALSA in order to assess whether free legal aid is required
for the Child alleged to be in conflict with the law.
Do’s and Don’ts at the time of apprehension
 The child cannot be kept in lock-up or jail or be kept with
an adult accused.

CrPC P a g e 161 | 249

  There must be no delay in the transfer of charge to the
Child Welfare Police Officer from the nearest police station.
 The child cannot be handcuffed or chained.
 The child must be provided with appropriate medical
assistance, along with it he must be provided with
assistance from the interpreter if he finds the language
difficult to understand or any other assistance as per
child’s requirements.
 Meals must be provided to the child.
 When the child is interviewed in front of a police officer,
his parents can be present.
 A child cannot be compelled to confess his guilt.
Furthermore, he must be interviewed at the Special
Juvenile Police Unit or at child-friendly premises or child-
friendly corner at the police station.
 A child cannot be compelled to sign any statement.
 The police officials at the time of apprehension must be in
plain clothes.
 In case the child is a female, then the female Child Welfare
Police officer shall take the female child for apprehension
or for production before the Juvenile Justice Board.
Do’s at the time of Child’s Medical Examination
The child alleged to be with the conflict of law can be subjected
to sexual abuse or it may be affected by HIV/AIDS or any other
disease. This is because such children are more vulnerable and
at high risk for physical, emotional, and sexual abuse.
Therefore the following points must be considered at the time
of Child’s Medical Examination:
 The designated Child Welfare Police officer shall take the
child to the hospital for medical examination.
 It must be ensured that the child is comfortable during the
medical examination.
 When there is a female child, the medical examination
shall be conducted by a female doctor only.
 The procedure of medical examination must be clear to
the child to ensure there is no anxiety or discomfort to the
child.
 During the process of medical examination, the child
cannot be asked questions regarding the case of the child
in conflict with the law.
 The child cannot be asked any personal question.

CrPC P a g e 162 | 249

Procedure on the production of the child accused who is in
conflict with the law (Section 14 and Section 15 of the Juvenile
Justice Act 2015)
1. The child who has been alleged to be in conflict with the
law has to be produced before the Board within the 24
hours of his apprehension.
2. The board shall conduct an inquiry in compliance with the
provisions of the act and it may pass such orders in
relation to such a child as it deems fit in accordance
with Section 17 and Section 18 of the Juvenile Justice Act,
2015.
3. In case there is a case of heinous offense, then a
preliminary assessment under Section 15 must be
disposed of by the Board within a period of 3 months from
the date when the child was produced before the board for
the first time.
Role of persons in whose charge the child has been placed
Section 11 of the Juvenile Justice (Child Protection and Care) Act
talks about the role of persons in whose charge the child has
been placed.
The provision states that when a person is in charge of the
child, he will have the responsibility of the child as if the said
person is the child’s who is responsible for the child’s
maintenance.
The necessary condition provided here is that the person will be
in charge of the child for the period stated by the board and
notwithstanding the child is claimed by his parents or any other
person; except the board is of the opinion that the parent or
any other person is fit to exercise charge over such child.
Bail to a person who is apparently child alleged to be in conflict
with the law
Section 12 of the Juvenile Justice (Child Protection and Care) Act
talks about the bail to a person who is apparently a child
alleged to be in conflict with the law.
The provision states that the juvenile who has committed a
bailable or non-bailable offense can be released on bail with or
without surety. However, the juvenile cannot be released if
there are reasonable grounds that would bring the child in
association with any of the known criminals or expose him to
any moral, physical or psychological danger or his release
would defeat the ends of justice.

CrPC P a g e 163 | 249

The Hon’ble Supreme Court of India in the Judgement of Om
Prakash v. State of Rajasthan observed that the Juvenile Justice
act was incorporated with the laudable object of holding
separate trials for children/ juvenile as they are pushed by the
force of circumstance and not by choice. However, if the
juvenile is involved in the commission of “heinous nature” like
the rape or murder, providing bail to the juvenile would defeat
the purpose of ends of justice as mentioned under Section 12 of
the act.
Information to Parents, guardians or probation officer
Section 13 of the Juvenile Justice act talks about the information
to parents, guardians, or the probation officer. The provision
states that the designated Chief Welfare Police officer of the
police station or the Special Juvenile Unit to which the child was
brought, must inform the parent or guardian of the child
directing them to present before the board where the child was
produced.
The probation officer, or if there is no probation officer, a Child
Welfare Officer within two weeks must submit a social
investigation report regarding the background of the child and
other material information for assistance to the Board for
initiating the inquiry proceedings.
If at all, the child is released on bail, the probation officer or the
Child Welfare Officer must be informed by the Board.
Inquiry by the board
In order to ensure fair and speedy inquiry, the board takes the
following steps for inquiry:
1. At the time of initiating the inquiry by the board, the board
must be satisfied that the child who is in conflict with the
law is not subjected to any ill-treatment by the police
officials or any other persons, this also includes a lawyer, a
probation officer. Moreover, if the board recognizes that
the child has been subjected to ill-treatment, then it will
take corrective steps for the same.
2. Under the relevant provisions of the act, the proceedings
against the child who is in the conflict with the law must
take place in the simplest manner. This is done to ensure
care for the child and the child is given a child-friendly
atmosphere.
3. The child, when brought before the board, must be given
the opportunity of being heard and adequate participation
in the inquiry process.
CrPC P a g e 164 | 249
4. In an inquiry, the cases of “petty offenses” are disposed of
by the board through summary proceedings.
5. In an inquiry, the cases of “serious offenses” are disposed
of by the board in accordance with the Code of Criminal
Procedure, 1973 under the procedure for trial in summons
cases.
6. In an inquiry, if the case is found be of “ heinous offense”:
o The child who is below 16 years of age as on the date
of when the offense was committed, shall be
disposed by the Board under clause (e).
o The child who is above the age of 16 years as on the
date of when the offense was committed by him,
shall be dealt in accordance with the manner stated
under Section 15 of the Juvenile Justice (Care and
Protection of Children) Act 2015.
o The board reserves a right to pass any orders which
necessary deems fit for the child. The board can send
the child to an observation home or a place of safety
or a fit facility or can bail him out if it deems it.
o After the procedure of inquiry, if the Board is satisfied
with the circumstances of the child, it can transfer
the child to the Committee if a child is in need of
protection and care.
o The preliminary assessment into heinous
offenses: The board does a preliminary assessment
into “heinous offense” committed by the child as
per Section 15 of the Juvenile Justice (Care and
Protection of Children) Act.
1. When a heinous offense is alleged to have been
committed by the child, who has completed the 16 years
of age, the board shall conduct a preliminary assessment
pertaining to the mental and physical capacity to commit
such an offense, his ability to understand the nature and
consequence of the offense he has committed. Moreover,
the Board can pass any order under provisions of sub-
section (3) of Section 18 of the Juvenile Justice Act,2015.
Furthermore, It is mandatory for the board to take the
assistance of experienced psychologists or psycho-social
workers or any other expert suitable for the job.
2. When the Board is satisfied with the procedure of
preliminary assessment it will dispose of the matter in
accordance with the trial in summons case mentioned
CrPC P a g e 165 | 249
 under the trial of summons case under Criminal Procedure
Code, 1973.

Orders regarding the child

Section 18 of the Juvenile Justice ( Care and Protection of
Children) Act, 2015 talks about the orders regarding the child
found to be in conflict with the law.
It states that:
1. If the board is satisfied with the inquiry irrespective of his
age he has committed the petty offense, serious offense,
or he is below 16 years of age and commits a heinous
offense; then notwithstanding anything in contravention to
any other law, and based on the nature of offense if there
is a specific need of supervision or intervention, and
circumstances which are brought under the social
investigation report and about the past conduct of the
child, the Board may, it deems it to be fit:
1. Allow the child to go, if there is compliance with the
procedures of inquiry and there is counselling given to the
child or to his parents or guardian.
2. The board can even direct a child to participate in group
counselling and activities of a similar nature.
3. It can also issue an order that the child must perform
community service under the supervision of the
organization and institution appointed by the board.
4. The board can order the child or his parents or guardian to
pay the fine, provided that if the child is working the
provisions of labor law are not violated.
5. The board can allow the child to be released on probation
for his good behavior and can place him under the care of
a parent or guardian or a fit person. The board will execute
a bond with such a person, with or without surety that
person will work for a child’s good conduct and well being
for not exceeding 3 years.
6. The board can direct the child to be released on probation
of his good conduct under the care and supervision of a fit
facility which will ensure good behaviour and well-being of
the child for a period not exceeding 3 years.
7. The board can even direct the child to be sent to a special
home for not exceeding 3 years in order to provide
reformative services such as education, development of

CrPC P a g e 166 | 249

 skills, counseling, behavior modification therapy,
psychiatric support.
2. In addition to the orders mentioned in (a) to (g); the board
can pass orders to:
 Attend school
 Attend vocational training center
 Attend a therapeutic center
 Prohibit a child from visiting a particular place
 order the child to undergo a de-addiction program
3. The board after the preliminary assessment under the
Section 15 of the act can pass an order if at all there is a
need of trial of the child as an adult, then the Board will
order the transfer of the child’s case to the Children’s
Court which has the requisite jurisdiction for dealing such
type of offenses.
Provisions regarding the Child runaway
Section 26 of the Juvenile Justice Act talks about the provisions
regarding the Child runaway in conflict with the law.
The aforementioned provision states that any police officer can
take charge of the child who has run away from a special home
or an observation home or place of safety or any other care of a
person or an institution where the child is placed.
Further, the child must be produced within 24 hours preferably
before the board has passed the order or the nearest board
where the child was found.
Then, the Board will ascertain the reasons behind running away
from the child and it can pass necessary orders of sending the
child back to the institution or person or any other place that
the board thinks is fit for the child. Along with this, the board
must also issue additional directions of special steps to ensure
that the child’s interests are protected. It is pertinent to note
that, no additional proceedings can be instituted against the
child.

Probation Officer under CrPC.

The Probation of Offenders Act- An Analysis
The object of Criminal Law is more inclined towards the
reformation of the offender than to punish him. Instead of
keeping an accused with hardened criminals in a prison, the
court can order personal freedom on promise of good behaviour
and can also order a period of supervision over an offender.

CrPC P a g e 167 | 249

This is the concept behind ‘probation’. Black’s law dictionary
defines ‘probation’ as‘ allowing a person convicted of some
minor offence (particularly juvenile offenders) to go at large,
under a suspension of sentence, during good behaviour, and
generally under the supervision or guardianship of a ‘probation
officer’.

It is believed that imprisonment decreases the capacity of an

offender to readjust to the normal society after the release and
association with professional delinquents often has undesired
effects on him and his life thereafter.
Probation is a socialized penal device which has come up as the
result of modification, over a period of time, of the doctrine of
deterrence into the principle of reformation; a development
that paved the way to the introduction of clinical approach and
the principle of individualization in the handling of offenders.

According to a report of the United Nations, Department of

Social Affairs, ‘Release of offenders on probation is a treatment
device prescribed by the court for the persons convicted of
offences against the law, during which the probationer lives in
the community and regulates his own life under conditions
imposed by the court or other constituted authority, and is
subject to the supervision by a probation officer’.
The suspension of sentence under probation serves the dual
purpose of deterrence and reformation. It provides necessary
help and guidance to the probationer in his rehabilitation and at
the same time the threat of being subjected to unexhausted
sentence acts as a sufficient deterrent to keep him away from
criminality.

The Probation of Offenders Act, 1958, is based on the concept

that young offenders can be saved from becoming habitual
offenders by treating them amicably and providing them with a
chance to reform rather than dumping them into jails. The
probation officer insists on the problem or need of the offender
and tries to solve his problem and sees to it that the offender
becomes a useful citizen of the society.

Statutory Provisions Dealing With Probation

The earliest provision to have dealt with probation was
sectionS.562 of the Code of Criminal Procedure, 1898. After

CrPC P a g e 168 | 249

amendment in 1974 it stands as S.360 of The Code of Criminal
Procedure, 1974.It reads as follows:-
‘When any person not under twenty-one years of age is
convicted of an offence punishable with fine only or with
imprisonment for a term of seven years or less, or when any
person under twenty-one years of age or any woman is
convicted of an offence not punishable with death or
imprisonment for life, and no previous conviction is proved
against the offender, if it appears to the Court before which he
is convicted, regard being had to the age, character or
antecedents of the offender, and to the circumstances in which
the offence was committed, that it is expedient that the
offender should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any
punishment, direct that he be released on his entering into a
bond, with or without sureties, to appear and receive sentence
when called upon during such period (not exceeding three
years) as the Court may direct and in the meantime to keep the
peace and be of good behaviour’.

The Probation of Offenders Act, 1958 and S.360 of the Code of

Criminal Procedure, 1973 exclude the application of the Code
where the Act is applied. The Code also gives way to state
legislation wherever they have been enacted.

The object of S.360 CrPC is to prevent young persons from

being committed to jail, where they may associate with
hardened criminals, who may lead them further along the path
of crime, and to help even men of more mature years who for
the first time may have committed crimes through ignorance,
or inadvertence or the bad influence of others and who, but for
such lapses, might be expected to be good citizens. It is not
intended that this section should be applied to experienced
men of the world who deliberately flout the law and commit
offences.

The Hon’ble Supreme Court in Jugal Kishore Prasad v. State

of Bihar, explained the rationale of the provision:
“The object of the provision is to prevent the conversion of
youthful offenders into obdurate criminals as a result of their
association with hardened criminals of mature age in case the
youthful offenders are sentenced to undergo imprisonment in
CrPC P a g e 169 | 249
jail.”

While dealing with this Act, the three most important provisions
that need to be highlighted are sections 3, 4 and 6. We will now
see each of these sections one by one.

Section 3
Power of court to release certain offenders after admonition.—
When any person is found guilty of having committed an
offence punishable under section 379 or section 380 or section
381 or section 404 or section 420 of the Indian Penal Code, (45
of 1860) or any offence punishable with imprisonment for not
more than two years, or with fine, or with both, under the
Indian Penal Code, or any other law, and no previous conviction
is proved against him and the court by which the person is
found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence,
and the character of the offender, it is expedient so to do, then,
notwithstanding anything contained in any other law for the
time being in force, the court may, instead of sentencing him to
any punishment or releasing him on probation of good conduct
under section 4 release him after due admonition.

Section 4
Power of court to release certain offenders on probation of good
conduct.—(1) When any person is found guilty of having
committed an offence not punishable with death or
imprisonment for life and the court by which the person is
found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence
and the character of the offender, it is expedient to release him
on probation of good conduct, then, notwithstanding anything
contained in any other law for the time being in force, the court
may, instead of sentencing him at once to any punishment
direct that he be released on his entering into a bond, with or
without sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, as the
court may direct, and in the meantime to keep the peace and
be of good behaviour.

Provided that the court shall not direct such release of an

offender unless it is satisfied that the offender or his surety, if
CrPC P a g e 170 | 249
any, has a fixed place of abode or regular occupation in the
place over which the court exercises jurisdiction or in which the
offender is likely to live during the period for which he enters
into the bond.

(2) Before making any order under sub-section (1), the court
shall take into consideration the report, if any, of the probation
officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court

may, if it is of opinion that in the interests of the offender and
of the public it is expedient so to do, in addition pass a
supervision order directing that the offender shall remain under
the supervision of a probation officer named in the order during
such period, not being less than one year, as may be specified
therein, and may in such supervision order, impose such
conditions as it deems necessary for the due supervision of the
offender.

(4) The court making a supervision order under sub-section (3)

shall require the offender, before he is released, to enter into a
bond, with or without sureties, to observe the conditions
specified in such order and such additional conditions with
respect to residence, abstention from intoxicants or any other
matter as the court may, having regard to the particular
circumstances, consider fit to impose for preventing a
repetition of the same offence or a commission of other
offences by the offender.

(5) The court making a supervision order under sub-section (3)

shall explain to the offender the terms and conditions of the
order and shall forthwith furnish one copy of the supervision
order to each of the offenders, the sureties, if any, and the
probation officer concerned.

Section 6
Restrictions on imprisonment of offenders under twenty-one
years of age.—
(1) When any person under twenty-one years of age is found
guilty of having committed an offence punishable with
imprisonment (but not with imprisonment for life), the court by
which the person is found guilty shall not sentence him to
CrPC P a g e 171 | 249
imprisonment unless it is satisfied that, having regard to the
circumstances of the case including the nature of the offence
and the character of the offender, it would not be desirable to
deal with him under section 3 or section 4, and if the court
passes any sentence of imprisonment on the offender, it shall
record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would not be

desirable to deal under section 3 or section 4 with an offender
referred to in sub-section (1) the court shall call for a report
from the probation officer and consider the report, if any, and
any other information available to it relating to the character
and physical and mental condition of the offender.

Important Case Laws on Sections 3, 4 & 6 of The Probation of

Offenders Act
In Keshav Sitaram Sali v. State of Maharashtra, it was
held by the Supreme Court that in a case of petty theft the High
Court should have extended the benefit of either section 360 of
the Code of Criminal Procedure or sections 3 and 4 of the
Probation of Offenders Act to the appellant instead of imposing
a sentence of fine on him.

In Basikesan v. State of Orissa, a youth of 20 years was

found guilty of an offence punishable under section 380 of
Indian Penal Code, 1860 and no previous conviction was proved
against him. It was held by the court that the offence
committed by the accused was not out of deliberate
preparation or design but it was a fit case for application of
section 3 and he be released after due admonition.
In Daulat Ram v. State of Haryana, it was held that the
object of section 6 is to ensure that juvenile offenders are not
sent to jail for offences which are not so serious as to warrant
imprisonment for life, with a view to prevent them from
contamination due to contact with hardened criminals of the
jail. Therefore, the provision should be liberally construed
keeping in view the spirit embodied therein.

The question of age of the person is relevant not for the

purpose of determining his guilt but only for the purpose of
punishment which he should suffer for the offence of which he

CrPC P a g e 172 | 249

is found guilty. Therefore, where a court found that offender
was not under the age of 21 years on the date when court
found him guilty, sub-section (1) of section 6 will not apply

Salient Features of The Probation of Offenders Act, 1958

The Probation of Offenders Act (Act No. 28 of 1958) contains
elaborate provisions relating to probation of offenders, which
are made applicable throughout the country. We will now
observe the salient features of the Act:-
·The Probation of Offenders Act, 1958 is intended to reform the
amateur offenders by providing rehabilitation in society and to
prevent the conversion of youthful offenders into obdurate
criminals under environmental influence by keeping them in
jails along with hardened criminals.

·It aims to release first offenders, after due admonition or

warning with advice, who are alleged to have committed an
offence punishable under Sections 379, 380, 381, 404 or
Section 420 of the Indian Penal Code and also in case of any
offence punishable with imprisonment for not more than two
years, or with fine, or with both.

·This Act empowers the Court to release certain offenders on

probation of good conduct if the offence alleged to have been
committed is not punishable with death or life imprisonment.
However, he/she should be kept under supervision.

·The Act insists that the Court may order for payment by the
offender such compensation and a cost of the proceedings as it
thinks reasonable for loss or injury caused to the victim.

·The Act provides special protection to persons under twenty-

one years of age by not sentencing them to imprisonment.
However, this provision is not available to a person found guilty
of an offence punishable with life imprisonment.

·The Act provides freedom to the Court to vary the conditions of

bond when an offender is released on probation of good
conduct and to extend the period of probation not to exceed
three years from the date of original order.

CrPC P a g e 173 | 249

·The Act empowers the Court to issue a warrant of arrest or
summons to the offender and his sureties requiring them to
attend the Court on the date and time specified in the
summons if an offender released on probation of good conduct
fails to observe the conditions of bond.

·The Act empowers the Court to try and sentence the offender
to imprisonment under the provisions of this Act. Such order
may also be made by the High Court or any other Court when
the case comes before it on appeal or in revision.

·The Act provides an important role to the probation officers to

help the Court and to supervise the probationers put under him
and to advise and assist them to get suitable employment.

·The Act extends to the whole of India except the State of

Jammu and Kashmir. This Act comes into force in a State on
such date as the State Government may, by notification in the
Official Gazette, appoint. It also provides liberty to State
Governments to bring the Act into force on different dates in
different parts of that State.

Duties of A Probation Officer

Sec 14of the Act deals with the duties of a probation officer. It
states:-
A probation officer shall, subject to such conditions and
restrictions, as may be prescribed -

(a) enquire, in accordance with any directions of a court, into

the circumstances or home surroundings of any person accused
of an offence with a view to assist the court in determining the
most suitable method of dealing with him and submit reports to
the court;
(b) supervise probationers and other persons placed under his
supervision and, where necessary, endeavour to find them
suitable employment;
(c) advise and assist offenders in the payment of compensation
or costs ordered by the
Court;
(d) advise and assist, in such cases and in such manner as may
be prescribed, persons who have been released under section
4;

CrPC P a g e 174 | 249

(e) perform such other duties as may be prescribed.

Offences In Which Probation Cannot Be Granted

We will now deal with those cases where probation cannot be
granted:-
1) In Ahmed v. State of Rajasthan, it was held that the
benefit of this Act cannot be extended to a person who has
indulged in an act which has resulted into an explosive situation
leading to possibilities of communal tension.

2) In State of Maharashtra v. Natverlal, the Supreme Court

declined to accord to the accused found guilty, the benefit of
Probation of Offenders Act because smuggling of gold not only
affects public revenue and public economy, but often escapes
detection.

3)Again in Smt. Devki v. State of Haryana, it was held that

the benefit of Section 4 would not be extended to the
abominable culprit who was found guilty of abducting a
teenage girl and forced her to sexual submission with
commercial motive.
4)In 2015, a Supreme Court bench consisting of Justices Pinaki
Chandra Ghose and Uday Umesh Lalit has ruled that the benefit
of Probation of Offenders Act cannot be extended to accused
involved in crimes against women.
The accused, Sri Chand was alleged to have lured a 12 year old
girl, who was grazing buffaloes in the jungle, and taking her
into a room wherein she was forcibly undressed and the offense
of rape was committed on her. The court while giving the
judgment relied on cases like Azhar Ali v. State of West
Bengal and State of Himachal Pradesh v. Dharam Pal

It is a settled law that nobody can claim benefit under the Act
as a matter of right. It was observed in State of Sikkim v. Dorjee
Sherpa and Ors that the Court should not take technical views
in certain cases and should take into consideration some other
aspects such as possibility of losing the job, for invoking the
provisions of Probation of Offenders Act even in serious
offences. It has further been contended that the Court should
also take into consideration that the convicts belonging to
middle class families without any criminal antecedent often
become victim of circumstances because of undesirable

CrPC P a g e 175 | 249

company and other evil influences available to such young
generation.

The Provisions Of Probation Of Offenders Act, 1958 Normally

Cannot Be Applied To:-
· ACB Cases
· Section 304 Of The Indian Penal Code,
· NDPS Cases
· Section 304-A Of The Indian Penal Code
· Section 325 Of The Indian Penal Code
· Sections 409, 467, 471 Of The Indian Penal Code
· Kidnap And Abduction.
· Habitual Offenders.

Explain the provisions relating to proclamation and

attachment of property of person absconding.

When we observe around in our surroundings, we observe

everything. The law defines which act is an offence and which
act is not an offence which ultimately reflects the way of the
society. From non-offenders to offenders, there is every kind of
person around us. In India, the Indian Penal Code, 1860; the
Code of Criminal Procedure, 1973; and the Indian Evidence Act,
1872 are the Legislative Acts which majorly deal with the
various procedures related to crime. The Code of Criminal
Procedure, 1973 is a procedural law which acts like a key to the
substantial laws, it complements the substantive criminal law.

There are various stages of procedures in criminal cases and

one of the pre-trial procedures is to provide for Processes to
compel Appearance. It is important for the accused to be
present at the trial in order to get fair justice and receive the
sentence in case of conviction. It is the duty of the Judiciary to
ensure that no innocent is punished.

This chapter has been divided into 4 parts ensure the presence
of the accused at the Trial. Chapter VI of the Code of Criminal
Procedure regarding summons, warrant of arrest, Proclamation
and attachment; and other rules. Broadly the accused in
CrPC P a g e 176 | 249
procured in the trail by summons or warrant but in case, the
Court has a reason to believe that the accused may flee, there
can be proclamation and attachment of the property of the
accused in order to compel him to appear in the court.

Need Of Presence Of Accused At Trail

The criminal justice system relied on the principles of natural
justice. If any of the principles are denied, the whole proceeding
is vitiated. The accused is needed to be present at the trial
proceedings. It is important on part of the justice delivery
system to keep the trial fair for both the parties in a case.

Fair trial implies that the accused is provided with an

opportunity to defend himself. The accused must not be torn off
from his right to receive a fair trial. And the same can be
ensured by the accused himself when he is present during the
trial proceedings. Also, in case of the conclusion of any trial, the
accused needs to be present in the court to receive the
sentence given to him.

Since the accused needs to be present at the court, his

presence can be assured by issuing summons, or in case of his
denial to be present at the court, by warrant. This means that
his presence can be assured also by arrest and detention.
Although if the accused is willing to be present as per the
requirements of the trial proceedings, the court may not cause
any direct or indirect obstruction in the liberty of the accused.
And hence, the court needs the accused to be present at the
trial proceedings but without any unreasonable hindrance to his
liberties.
Legal Repercussion Of Absconding
Absconding means to hide, as per the legal Dictionary, abscond
means traditionally to leave jurisdiction in order to avoid legal
proceedings. The Code of Criminal Procedure provides for the
manner of any trial to be proceeded.

Whenever one commits a crime, they want to escape the

jurisdiction of the courts and try to run away. There are many
instances where the criminals elope after commission of a
crime. In such circumstances, when there are trial proceedings

CrPC P a g e 177 | 249

going on, the accused needs to be present during such
proceedings but in case he isn't, the law provides for provisions
in such cases. Whenever such a circumstance comes up before
the court, the court procures the property of the absconding
person which is valuable to them and hence, compels them to
be present during the trials.

The code provides direction in case of a summons case that

initially a summons is issued to the accused and if the accused
is not present after summons, the court issues warrant for
arrest of the accused. Under section 174 of the Indian Penal
Code, 1860, it is an offence punishable with 6 months of
imprisonment, if the accused intentionally does not attend the
trial even after summons has been issued for him.

In a particular case, the court provides discretion to judicial

officers to deal accordingly. It has been provided under section
204 of the code of criminal procedure that whenever the
magistrate is satisfied that a case is either a summons or a
warrants case then the magistrate can issue a summons or a
warrant against the accused for the trial proceedings. It is also
provided that section 204 will not affect anything in section 87.
Under section 87, if any magistrate has the reason to believe
that the accused has the capacity to abscond than he can issue
a summons or arrest against the same person.

Hence, it can be interpreted that the person who absconds can

be liable as per the conditions given regarding proclamation
and attachment.

Proclamation And Attachment

As the appearance of person is needed during the trial
proceedings, under chapter VI of the Code of Criminal
Procedure, 1973 the provisions regarding processes to compel
the appearance of an accused is given. Proclamation means an
important public announcement.

Under the part C of the chapter, provision regarding

proclamation and attachment has been given.

They have been explained as follows:

CrPC P a g e 178 | 249

 1. Proclamation For Person Absconding
As per section 87 of the Code, a person who willfully neglects
the summons for the trials without a reason before the court,
the court can issue a warrant of arrest for that person. Here,
the cases in which such warrant of arrest has been issued,
there are reasons to believe that the accused may abscond. To
avoid the same from happening the court has the authority to
publish a written proclamation which would require the person
to appear before the court or the court may attach his property.
This means that if the accused does not appear before the
court, the attached property would be at the disposal of State
government and the state government can sell that property.

A proclamation can be made by a public hearing at a place the

person resides, at his house where he reside and a copy of
proclamation to be affixed. However, a proclamation can even
be published in the newspaper being circulated at the area the
person resides.

This would naturally put pressure on the accused to appear

before the court during the trial proceedings to avoid disposal
of his property. Section 82 to 86 discuss the provisions related
to such proclamation and attachment of property of the
accused.

Section 82 of the Code of Criminal provides for the

publication of proclamation for the person absconding,
it states that:

i. If any Court has reason to believe (whether after

taking evidence or not) that any person against
whom a warrant has been issued by it has absconded
or is concealing himself so that such warrant cannot
be executed, such Court may publish a written
proclamation requiring him to appear at a specified
place and at a specified time not less than thirty days
from the date of publishing such proclamation.

ii. The proclamation shall be published as follows:

CrPC P a g e 179 | 249

 a. it shall be publicly read in some conspicuous
place of the town or village in which such person
ordinarily resides;
b. it shall be affixed to some conspicuous part of
the house or homestead in which such person
ordinarily resides or to some conspicuous place
of such town or village;
c. a copy thereof shall be affixed to some
conspicuous part of the Court-house;
iii. the Court may also, if it thinks fit, direct a copy of the
proclamation to be published in a daily newspaper
circulating in the place in which such person
ordinarily resides.
iv. A statement in writing by the Court issuing the
proclamation to the effect that the proclamation was
duly published on a specified day, in the manner
specified in clause (i) of sub-section (2), shall be
conclusive evidence that the requirements of this
section have been complied with, and that the
proclamation was published on such day.
v. Where a proclamation published under sub-section
(1) is in respect of a person accused of an offence
punishable under section 302, 304, 364, 367, 382,
392, 393, 394, 395, 396, 397, 398, 399, 400, 402,
436, 449, 459 or 460 of the Indian Penal Code (45 of
1860), and such person fails to appear at the
specified place and time required by the
proclamation, the Court may, after making such
inquiry as it thinks fit, pronounce him a proclaimed
offender and make a declaration to that effect.
vi. The provisions of sub-sections (2) and (3) shall apply
to a declaration made by the Court under sub-section
(4) as they apply to the proclamation published
under sub-section (1).
The term, abscond here does not merely mean to leave a place
but rather its etymological sense, to hide oneself. In the case
of N.M.V. Vellayappa Chettiar v. Alagappa Chettiar, it has
been elaborated that if a person had gone to a distant place
before the issue of a warrant, he cannot be said to be
CrPC P a g e 180 | 249
absconding to evade the warrant execution.

Since the section violates the human rights of the accused to

some extent, the amendment Act has provided that a person
can be declared as a proclaimed offender in case he has
committed a serious crime and does not present himself before
the court even after the proclamation under section 82 sub-
section (4). The term, 'reason to believe' here is used in
reference that the magistrate must be subjectively satisfied
that the person has absconded.

2. Attachment Of Property Of Person Absconding

A person against whom a proclamation has been issued by the
court under Section 82, his property can be attached as per
Section 83 of the Code of Criminal Procedure, 1973. This is
done to compel the person to appear before the court on trial
proceedings.

Section 83 provides that, if the court has a reason to believe

that the proclaimed person is either disposing the immoveable
property or move it out of court's jurisdiction, then the court
may attach the property of the proclaimed person. It can be
done by the order of attachment under form 7 or form 6 of
second schedule, the Code of Criminal Procedure.

Further, in sub-section 3 it has been provided that the movale

property can be attached by seizing, appointing a receiver, or
as the court deems fit. In case the property to be attached is
immovable, it will be attached by the collector of the District of
location of the property. Also, if the property is perishable, it
would be sold off on the order by the court and the funds
received would be used as the court directs. It has to be kept in
mind that there will be a receiver appointed as per the
provisions prescribed in the Code of Civil Procedure, 1908.

In the case of Devendra Singh Negi v. State of U.P, it was

observed that the attachment of property as per section 83
cannot be done before the period of 30 days from the issuing of
proclamation for person absconding under section 82.

The Constitution of India under Article 300A provides right to

CrPC P a g e 181 | 249
property to a person. Right to property is not a fundamental
right but rather a statutory right. Article 300 A affirms that no
person shall be deprived if his property save by the authority of
law. The attachment of property is as per the Code of Criminal
Procedure provides and it may make it difficult for the accused
but it does not infringe any rights of the accused.

Further under section 84 of the Code of Criminal Procedure, if

any person other than the proclaimed person is aggrieved by
the attachment, the claims and objection to attachment has
been provided. It is provided that if the claimant or objector has
any interest in the attached property and he objects against the
attachment order within 6 months of attachment, that property
is not liable to be attached under section 83 and it shall be
inquired. In case the claimant or objector dies, his legal
representative can carry on with the claim or objection.

3. Release, Sale And Restoration Of Attached Property

Section 85 of the code provides for the release sale and
restoration of attached property. If the proclaimed person
appears before the court as per the proclamation, his property
is released and if not so then the property remains under
attachment for 6 months and post this period, it is sold by the
State Government after a period of 2 years.

Here, the property attached is given to the State Government

because the property is always under the absolute control of
the state government. Further, if a person within the period of 2
years from attachment satisfies the court that he was not
absconding, the costs incurred during the attachment are
delivered back to the person.

Conclusion
In the light of the above discussions, it can be concluded that
the legal repercussion of absconding comes in the form of
proclamation followed by attachment of property of the person
accused. It can be observed that the attachment of property is
a last resort for the court in order to compel the person accused
to appear before the court.

CrPC P a g e 182 | 249

But the presence of the accused is mandatory in the court as
he needs to be there to carry on the trial proceedings. A person
who intentionally absconds the trial proceedings is declared as
a proclaimed offender. And further in case the accused does not
appear before the court post attachment of property the court
has the authority to dispose the property attached.

Issue of arrest is the sine qua non of any proceeding of the

court under section 82 and further, without the completion of
30 days periods from the proclamation, no attachment of
property can be done. Chapter VI of the Code of Criminal
Procedure, 1973 extensively provides for proclamation and
attachment of property of the person absconding. It is a legal
obligation of both the parties to be present during the trials for
a fair trial.

Explain the provisions of Cr. P.C. relating to security for

keeping good behaviour and peace.

Security for keeping peace and behaviour under 109, 110, 111
of CrPC
“Prevention is better than cure” is a proverb which is in
common parlance and well known. Sir William Blackstone
believed that ‘‘preventive justice is preferable in all respects to
punishing justice”. Rather than merely being a popular quote,
this proverb is deeply embedded in various legal systems as
well. Indian criminal law is not completely unwary of the
jurisprudential norm of preventive justice. Substantive law
states that crime is to be prevented, and procedural law
provides a mechanism for the same. The Code of Criminal
Procedure, 1973, has enacted several provisions, as seen in the
previous chapters, for investigation, inquiry, and trial with
regard to every crime alleged to have been committed.
Furthermore, in order to prevent crime, it was essential to
include a few preventive measures. Provisions were also
enacted in the form of other precautionary measures for the
protection of society as a whole.
These matters are contained in Sections 106 to 124 and
Sections 129 to 153. Part VIII seeks to create a stable society by
enforcing the aforementioned proverb and ensuring peace and
good behaviour. Security means providing a guarantee
CrPC P a g e 183 | 249
consistent with the court’s satisfaction that a certain form of
conduct is to be upheld for a specified period by a certain
person who is concerned with such a thing. Executing a bond is
the prescribed mode of creating the security that is required in
order to ensure peace and good behaviour. The bond therein
can be executed with or without sureties. This whole procedure
is a judicial one and not an administrative one that is within the
discretionary power of the court.
In the Australian legal system, a “good behaviour bond” is one
of the prominent non-custodial sentences that is concerned
with imposing certain conditions to guarantee the offender’s
“good behaviour” for a stipulated period of time. Similarly,
Sections 108, 109, and 110 of the Code contain provisions
pertaining to taking security for good behaviour from persons
likely to commit offences.
How can “good behaviour” be determined
These provisions are enforced against any suspected persons
or habitual persons who are likely to commit offences. It is not a
punitive measure but a preventive measure to ensure that a
person who is likely to commit such offences is bound by a
bond to not display such behaviour, which would be contrary to
the bond executed therein. This behaviour is determined based
on the accused’s previous conduct and other surrounding
factors. The jurisdiction conferred under the ambit of Section
108 is preventive and not punitive in nature.
The test under this Section is whether the person proceeded
against has been disseminating or circulating seditious matter
or such other matter as prescribed in Section 108, and whether
there is a possibility with respect to a repetition of such an
offence in the future. In each similar case, it is important to
understand this particular question of fact with reference to the
background of the person and other key surrounding
circumstances. It may be noticed that when it comes to cases
falling under clause (2) of Section 108, the dissemination must
be intentional, but when it comes to cases falling under clause
(ii) of Section 108, the dissemination need not be intentional
with regard to there being any reason to believe that such a
person is doing so in order to commit a cognizable offence.
Under Section 108, the magistrate may order such a person to
show cause why he should not be ordered to execute a bond, to
CrPC P a g e 184 | 249
assure good behaviour for a stipulated period, which does not
exceed one year, as the magistrate deems fit. Similarly, in
order to ensure good behaviour under the purview of Sections
109 and 110, a person may be asked to prove and show why
such a person should not be ordered to execute a bond, with or
without sureties, to ensure such a person’s good behaviour for
such a period, not exceeding a year, as the Magistrate deems
fit. The purpose of this part is to determine and ensure the
good behaviour of persons who might commit an offence
through bond execution.
Benefits under Section 109
Section 109 of the Code deals with security for good behaviour
by suspected persons. It can be enforced when a person takes
precautions to cloak his presence in order to commit a
cognizable offence. The magistrate may demand that such a
person show why he should not be ordered to post a bond for
good behaviour for a period not exceeding one year. This is a
preventive measure designed to stop a person from carrying
out a cognizable offence in the future.
This Section restricts or curtails the liberty of a person who is
concealing himself to commit a crime and must be applied only
when it’s needed to uphold the fundamental rights guaranteed
under the Indian Constitution. This Section upholds the very
essence of preventive justice as it gives effect to the rational
ideology of preventing crime, thereby eliminating any damage
it could cause in all probability. The words ‘‘concealing his
presence” have to be interpreted widely as per this Section and
are sufficiently wide to cover not only mere concealment or
cloaking of bodily presence in a house or any other place, etc.,
but also any concealment of appearance through a mask or
covering the face or disguising themselves using any other
means. This form of preventive justice doesn’t just exist in India
but is also prevalent across various legal systems.
As per Canadian jurisprudence, a peace bond is an order issued
by a criminal court that forces a person to keep the peace and
be on good behaviour for a specified period. In simpler terms,
this means that any person signing a peace bond cannot be
charged with any additional criminal offences during the
duration of the peace bond. Peace bonds have other conditions
as well; the person may be restrained from possessing any

CrPC P a g e 185 | 249

weapons or asked to stay away from a particular person or
region by the court.
Whereas in Australia, a good behaviour bond falls under the
ambit of non-custodial sentences, which includes the assurance
regarding the offender’s “good behaviour” for a set period. The
condition of “good behaviour” ensures that the offender obeys
the law, and may also include other conditions like probation,
supervision by an officer appointed by the court, mandatory
medical treatment, rehabilitation, counselling, and certain
intervention programs. These are some of the advantages of
Section 109.
 Incapacitation of a potential offender.
 Deters occurrence of crime.
 Rehabilitation of potential offenders.
 Restitution of offenders into society.
 Consistent with the better safe than sorry ideology
thereby preventing any damage that could possibly be
inflicted.
 Creation of a safer society.
Security for good behaviour of habitual offenders under Section
110 CrPC
This Section is concerned with keeping habitual criminals under
control when there is a possibility of repetition. It intends to
incapacitate ex-convicts or habitual criminals who are
dangerous and who are incorrigible. These offenders are
potentially so dangerous that the ordinary provisions within
penal law and the usual fear of judiciary-enforced punishments
do not deter such persons from committing further crimes. As
per this provision, the executive magistrate can initiate
proceedings if information pertaining to the following persons is
received:
 A person who is a habitual offender, robber, house-
breaker, thief or forger.
 A person who is a habitual receiver of stolen property.

CrPC P a g e 186 | 249

  A person who is a habitual protector or harbourer of
thieves or habitual abettor in the concealment or disposal
of stolen property.
 A person who is a habitual kidnapper, abductor,
extortioner, cheat or a person habitually committing
mischief, offences relating to coin stamps, etc.
 A person who is a habitual offender or abettor of a breach
of the peace.
 Habitual offenders committing or attempting to commit or
abetting the commission of offences under the Acts like –
1. The Drugs and Cosmetics Act 1940
2. The FERA 1973
3. The Employees Provident Fund Acts 1952 etc The Custom
Act,1962
4. The Prevention of Food Adulteration Act, 1954
5. The Essential Commodities Act, 1955
6. The Untouchability (Offences) Act, 1955
7. The Customs Act, 1962
Such a magistrate may instruct or order him to show cause as
to why he should be ordered to execute a bond with sureties for
his good behaviour for a period not exceeding three years. This
Section does not aim to provide an indirect mode of securing a
conviction in cases where a prosecution is likely to fail. This
Section is purely enforced to curb the heinous atrocities by
habitual criminals and to protect the community from any
damage they are likely to cause. However, if it is not used with
caution and consideration, it might easily become a tool for
arbitrary decision-making. It may further be noted that
proceedings under this Section are judicial in nature and not
executive, and hence, the court is mandated to follow the
procedure strictly to avoid any form of arbitrariness. When
action against a person is initiated under this section, that
person should be cordially informed of the charges. A mere
suspicion that a person possesses criminal tendencies is not
sufficient, the charge against such a person should be definite
and unambiguous.

CrPC P a g e 187 | 249

What does Section 111 of the CrPC say
As per Section 111, when a magistrate exercises powers under
Sections 107, 108, 109, or 110 against a person, that person
has to compulsorily show cause under the same section, and
the magistrate having jurisdiction shall make an order in
writing, representing the substance of the information received,
the amount of the bond that has to be executed, the period of
time for which it is to be in force, and the number, character,
and class of sureties if any are required.
Ingredients of Section 111 of CrPC
This Section prescribes the procedure for passing a preliminary
order, and the magistrate shall make an order:
1. Mentioning the substance of the information received,
2. The amount of bond to be executed to ensure peace or good
behaviour,
3. The term for which the bond is to be in force,
4. Any number, character, and class of securities if provided.
The reason why the substance of the information is mentioned
in the notice is to provide a reasonable opportunity for the
accused to come prepared to meet the accusations.
Preliminary procedure of initiating action under Section 107-110
1. Order requiring the respondent to show cause
When a magistrate acting under the ambit of Sections 107,
108, 109, or 110 deems it necessary to order a person to show
cause under these Sections, the magistrate can make an order
in writing the following:
 Setting forth the basis or the source of the information
received,
 The rate of the bond that has to be set, the term for which
it is to be in force,
 And the number, character, and class of sureties if
required.
It is paramount that the person against whom this action is to
be initiated be informed of the grounds for the same and why
the court deems it fit to do so.
CrPC P a g e 188 | 249
 2. Communication of the order
If the person against whom such an order is made is present in
court, the order should be read and explained to him. If the
order is not read out and explained as required by Section
112 above, it is an illegality that vitiates the proceedings. If
such a person is absent from court, the magistrate can issue a
summons compelling him to appear, or when the person is in
custody, a warrant can be issued directing the officer in charge
to bring him before the court. However, as per Section 113, if
the magistrate, based on the report of a police officer or any
other information received, has reason to believe that there is
reason to fear the commission of a breach of peace and the
only way to prevent such a crime is arrest, then he can initiate
action as per the aforementioned proviso.
3. Personal attendance is not always compulsory
As per Section 115, the Magistrate may, based on valid
grounds, dispense with the personal attendance of any person
called upon to show cause why he should not be ordered to
execute a bond that ensures he wouldn’t undertake any illegal
act, which forms the basis of the show cause against such a
person.
Landmark case laws
These are some of the significant judgements regarding this
topic:
Navin v. State of UP( 2021)
Herein it was held that the words habit and habitual have been
defined, and the word habit has a close correlation with the
character of a person when it comes to invoking provisions
related to keeping peace and good behaviour. It was also held
that the words “habit and habitually” have been used in the
sense of depravity of character as evidenced by the frequent
repetition or commission of the offences mentioned in the
Section.
Zahir Ahmad v. Ganga Prasad (1962)
In this case, it was held that the procedure under Section 111 is
mandatory in all criminal cases and that non-compliance
wouldn’t be treated as a mere irregularity. Hence, it was
deemed by the Court that action under the ambit of this
CrPC P a g e 189 | 249
Section could not be invoked if the procedure prescribed wasn’t
adhered to by the authorities.
Abdui Ghafoor v. Emperor(1943)
In this case, it was held that the words “conceal presence” in
Section 109 are wide enough to cover not only the concealment
of bodily presence in a house or grove, etc., but also the
concealment of appearance by wearing a mask or covering the
face, or disguising by wearing a uniform, etc.
Nikka Ram v. State (1954)
Herein it was observed that the information received by the
magistrate under Section 108 should not be vague and must
clearly establish that the person against whom the information
is given is by habit a robber, housebreaker, etc. The police
report, by reproducing the words of the section and merely
considering the bad name of a person, does not really give
information about the meaning of this section.
Criticism
Sections 109 and 110 of the Code are concerned with security
for good behaviour from vagrants, suspicious persons, persons
who have no definite means of living, habitual offenders or
criminals, etc. The existence of a certain class of persons
known as vagrants, vagabonds, rogues, etc., has perpetually
threatened civilised societies all across the globe. But judicial
compliance with this sigma would hinder societal growth and
development. Since criminal sanctions deprive people of
personal liberties and dignity, they should be carefully
exercised. Criminal liability arises out of an act or intention, and
these provisions deviate from this well-established rule and
could possibly create a status-driven contrast. The practice of
using mere previous status as the sole basis of prosecution is
carried out in order to prevent anti-social elements, and it
might even have an effect to some extent, but if not exercised
carefully, the presumption of guilt without any evidence can be
repugnant to ethical boundaries, destabilise the philosophy
behind justice, and curtail a person’s right to live with dignity
irrespective of status or any other parameter.
Conclusion:
Sections 109 and 110 of the code personify pre-emptive action
against crime that is yet to happen, thereby eliminating any

CrPC P a g e 190 | 249

harm that would occur in the future and creating a narrative of
safety. Being a pre-emptive measure, this provision also has
certain social implications, as if they aren’t used fairly, these
provisions can result in an arbitrary exercise of judicial
discretion. Hence, it is important to remember that this
provision is not punitive by any means and cannot be exercised
in a manner that causes prejudice to any Section of the society.

Explain the provisions of Cr. P.C. relating to the transfer

of criminal cases.

Provisions for the transfer of cases under the Criminal

Procedure Code, 1973
Under the Criminal Procedure Code of 1973 for the processing
of criminal proceedings, Chapter XXXI provides for the transfer
of criminal cases. The chapter contains sections 406-412.

The rules are:

1. Section 406 - Power of Supreme Court to transfer cases
and appeals
Section 406 of the Criminal Procedure Code gives the Supreme
Court the power to transfer cases and appeals. The Code gives
the Supreme Court broad discretionary power to transfer any
case or appeal to the High Court of any other High Court of any
State of the country to meet the principle of justice and natural
justice.

An application to transfer any case or appeal pending in the

High Court can be moved to the Supreme Court by:

o Those who fear court injustice; Or

o Unable to find out who is being served any proper
justice; Or
o Attorney General or Advocate General of India.
The power conferred by the Code under Section 406 on the
Supreme Court is purely discretionary and there is no
legitimacy in the course of the transfer and the applicant has
no obligation to establish conclusively that only the applicant is
expected. To justify the arguments, he made under the
application to the Supreme Court. The application must be in
the form of an affidavit or affirmative motion under section 406
CrPC P a g e 191 | 249
of the Code unless the applicant is the country's Advocate
General or Attorney General.

The power of the Supreme Court to transfer cases and appeals

extends to the transfer of cases by any subordinate court of
any pending country. However, the Supreme Court at the
hearing of the case can ensure that the Supreme Court is
taking all steps to uphold the principles of fair and natural
justice when transferring the case. In any case, the client is
always guaranteed to bring the court to the attention of the
court with appropriate jurisdiction, as there are reasonable
grounds for heightening anxiety in the person's mind that there
are certain factors that may impede his right to a fair trial.

This provision provides for the transfer of cases and appeals

from the Supreme Court:

o or from one High Court to another

o The Criminal Court submits one High Court to another
High Court in a Criminal Court of equal or greater
jurisdiction.
If it is considered in the interest of justice. Such application
should be made by:

6. Attorney General of India

7. State Party Advocate General of the 1case
8. Any other party involved or interested in the case, in
which case it must be supported by affidavit or
confirmation
If a person is found to have filed a fraud application under Sec.
2000 should be paid to any party who opposes the transfer
application.

In "Suman Gambhir v. State of Rajasthan & Ors.", complainants

and accused are based in Delhi, the civil suit between the
parties is pending in Delhi and the state has no objection to
move the case from Rajasthan to Delhi.

In "Fajlor Rahman alias Mohamod Fajloo alias Raju & Ors. v.

State of Punjab & Anr.", the petitioners filed an application for
the transfer of the criminal case against the applicant and his
brothers under Section 363-A, 366 and 120-B to the learned
Chief Judicial Magistrates' Court in Jalandhar Filler, Punjab.,
CrPC P a g e 192 | 249
Barpeta, Assam. The grounds are potentially life-threatening as
petitioners 1 and 2 run away to marry. The Supreme Court,
which considered it for the benefit of justice and the client,
transferred the case according to the petition.

In "Vishwanath Gupta & Anr. v. State of Uttaranchal & Anr.",

transfer Petitions of 2004 (Crl.) No. 254-55 along with that of
No. 89 of 2005, the Supreme Court held that petitioners sought
a transfer based on an inability to engage defendant lawyers.
The District Collector's Association is not permitted by the
concerned court when the affidavit is submitted that the
petitioner is provided with legal counsel.

In Sukhdev Singh Sodhi vs The Chief Justice and Judges

of The PEPSU High Court, court said that the power to
transfer cases to the Supreme Court does not extend to the
transfer of any pending contempt proceedings in the High
Court.

The authority to transfer cases and appeals are not only

discretionary but also limited because Section 406 does not
give the Supreme Court the power to transfer pending
investigation from one police station to another for the sole
purpose of filing a FIR. If the Supreme Court considers that the
filed petition is trivial and there are no substantive rights, the
party accompanying the petition may order the party to pay
compensation in excess of one thousand rupees. Objected to
such application.

In the case Kaushalya Devi v. Mool Raj, the magistrate

dealing with the case filed an affidavit opposing the application
by the affidavit itself, saying there was no doubt in the transfer
of the case. This is in the full interest of justice because in all
such cases the requirements for a fair and impartial trial are
already at risk, as indicated by the personal involvement of the
judge.

2. Section 407 - Power of High Court to transfer cases and

appeals
Section 407 of the Criminal Procedure Code empowers the High
Courts to transfer cases and appeals.

CrPC P a g e 193 | 249

The circumstances under which HC may order the transfer of a
case or appeal.

The High Court is empowered to transfer cases when

satisfied:

o The Right To A Fair And Impartial Hearing Guaranteed

Under Article 21 Of The Constitution Of India Shall
Not Be Exercised By Any Of Its Parties If Tried By
Subordinate Courts;
o Some Questions Related To The Current Issue In
Court Have Extraordinary Difficulties;
o The Transfer Of An Appeal Or Case Is Inevitable By
Any Provision Under The Code;
o The Transfer Order Is For The General Convenience Of
The Parties Or Witnesses Involved In The Lawsuit.
Orders that the High Court can issue:
Once the presence of the above grounds is satisfied, the High
Court may order any of the following:

o Any court subordinate to or subordinate to any other

court under section 177 and section 185 of the Code
shall be guilty of prosecution but shall not be entitled
to a trial or attempt to commit such offences in
question;

o If a particular case or appeal is pending before any

criminal court, it is subject to any other criminal court
having jurisdiction over the High Court;

o The particular case should be placed before the

Sessions Court for trial;

oA particular case or appeal should be placed in the

High Court.
In whose instance the transfer authority is exercised
The High Court exercises jurisdiction over the following
cases:

o To transfer to the High Court when the lower court

submits a report to the appeal or case;

CrPC P a g e 194 | 249

 o An application to request the transfer of a case or
appeal in the event of placing an interested party
before the High Court;
o The High Court may transfer the case at its own
discretion or appeal if it satisfies the client's interest
in the litigation.
However, in transferring the case, the High Court should keep
in mind the fact that no application for transfer of the case from
one criminal court to another criminal court shall be made
unless the application for transfer of the case is made in the
same Sessions Division. Sessions Court and they have rejected
it.

When exercising the power of the High Court to transfer

cases and appeals:

12. There will be no fair, just and impartial trial

13. Some question of unusual difficulty is involved or
arises
14. Such order is required under certain provisions of the
Code
15. It is necessary for the convenience of the parties and
witnesses
16. Suitable for the ends of justice
However, in Baljit Singh & Anr. v. State of Jammu and
Kashmir & Ors., the Supreme Court has rejected the plea of
transferring criminal cases from Jammu to Srinagar, with most
of the witnesses being Srinagar. The court said that there was
no need to transfer the case as all the witnesses of Jammu were
examined.

The case or appeal under this section may be:

17. Transferred from one Criminal Court to another

Criminal Court subordinate to the High or
Jurisdictional High Court
18. Sessions committed to the court
19. The High Court itself has tried
In Pal Singh & Anr. v. Central Bureau of Investigation &
Ors., The Supreme Court has said that a criminal case or
appeal may be transferred from the district court to the district
court in its jurisdiction. There is no provision for inter-state
transfer of cases. Also, when a case is in its final stages of a
CrPC P a g e 195 | 249
trial, the transfer of most witnesses is inadequate.

Transfer applications can be made by affidavits or

confirmation:

20. Report of the lower court

21. Interested party
22. High Court on its own

In the case of Nirmal Singh v. the State of Haryana, the

Supreme Court quashed the Punjab and Haryana High Court's
order that the criminal case is transferred to Chandigarh by the
Sessions Judge of Ambala. Neither the client nor the reason for
their hearing was given. Also, many of the accused argued that
it would incur additional costs to engage legal counsel.

If the case is to be moved from one criminal court to another in

the same Sessions section, the transfer application can be filed
in the High Court only if the Sessions Judge has already rejected
it.

The High Court follows the proceedings in the same way that
the case or appellant does not transfer.

3. Section 408 - Power of Sessions Judge to Transfer Cases

and Appeals

The Sessions Judge is also entitled to transfer cases and

appeals from the Code under Section 408.

o Subsection 1 of Section 408 provides that when the

Sessions Judge finds it appropriate to transfer the
case to meet the ends of justice. He has the authority
to transfer such cases from one criminal court to
another criminal court within the jurisdiction of his
session;

o Subsection 2 of Section 408 provides instances where

the Court of Sessions can transfer cases. In the
instance of a report filed by the lower court having
the power to transfer cases to the Sessions Court, the
CrPC P a g e 196 | 249
 section provides that the interested party or the court
may file the application, authority at its own
discretion;

o The provisions of subsection (3), (4), (5), (6), (7) and

(9) of section 407 apply to the Sessions Judge when
making any order relating to the authority when
exercising the provisions referred to under subsection
1 of section 407 of the Code. By subsection 1 of
section 408 in the same manner as applied to the
High Court.
Section 408 empowers the Session Judge to transfer from one
Criminal Court to another Criminal Court, if appropriate in the
interests of justice in his / her Sessions Division.
Sessions Judge may act:

4. On its own
5. In the lower court report
6. On the application of the party

Some of the provisions of Section 407 apply to orders

under Section 408 and include:
If the accused files a transfer petition, the High Court or the
Sessions Judge may, from time to time, order the bond to be
executed with or without a Shuri. Further, the accused must
provide written proof of such application to the Public
Prosecutor. No order shall be made on the merits of the
application unless a 24-hour period has elapsed between the
filing of the notice and the hearing of the application.

If a person is found to be filing fraudulent transfer applications,

he/she may be ordered to pay compensation up to Rs. 1000
from the High Court or Rs. 250 by Sessions Judge for any party
who opposed the application.

No provision of Section 407 or 408 shall affect the Government

Orders of U / s 197.

4. Section 409 - Withdrawal of Cases and Appeals by

Sessions Judge
This provision empowers the Sessions Judge to withdraw or
withdraw the case, or to appeal to any Assistant Sessions Judge

CrPC P a g e 197 | 249

or Chief Judicial Magistrate under him. But, in the case of the
Additional Sessions Judge, that can only be done if the trial
does not begin. Pursuant to the provisions of this Code, the
Sessions Judge may try the case or appeal to his / her own
court or to another court.

In Subrata Pal v. Ratna Gope & Anr., the Agartala Bench of

Gauhati, High Court said that if the case or appeal is withdrawn
from the Court of Additional Sessions Judge, the Sessions Judge
will report to the High Court when the trial or proceedings are
commenced. Court with reasons for such omission under
Section 407 (2).

5. Section 410 - Withdrawal of Cases from Judicial

Magistrates
It empowers the Chief Judicial Magistrate to withdraw or recall
any case made to any Magistrate under him and refer it to the
Magistrate who is able to try and prosecute any case.

It empowers the Judicial Magistrate to recover and prosecute

any case made to any other magistrate under section 192 (2)
of the CrPC, 1973.

In Mehfooz Khan & Anr. v. R. J. Parakh & Anr., the Bombay

High Court held that the power of a judicial magistrate under
section 410 is not an administrative order but a judicial order.
Withdrawal or recall of the use of words is similar to word
transfer. Since the state is the leading party in all criminal
cases, the state may file an application to transfer the criminal
case if compelling reasons exist.

6. Section 411 - Withdrawal of Cases from Executive

Magistrates
Similar to Sections 409 and 410, Section 411 empowers the
Executive Magistrates to withdraw or recall any case made to
the Subordinate Magistrate and to dispose of such proceedings
in his / her own court or to submit it to another Subordinate
Magistrate.
7. Section 412 - Reasons to be recorded
Section 412 states that if a transfer order is made under
Section 408/409/410/411, the reasons for it must be

CrPC P a g e 198 | 249

documented. This will ensure that no transfer order is made
without fair, just and compelling reasons.

Grounds for appeal and transfer of cases:

o To uphold the spirit of justice: The ultimate goal of

any judicial system on earth is the liberation of
justice and the protection of the rights of each
individual. Courts are one of the most respected
institutions of justice and people have high
expectations of justice, which can be sought by a
person. Therefore, the court has greater moral
obligations to keep the machine of justice, equality
and good conscience alive.

o Recommendations made by top judicial authorities:

Courts consider inquiries and findings from reports of
chief judicial magistrates or senior judicial officers
when deciding whether cases and appeals should be
transferred from one court to another Sessions court.

o At the request of the trial court: the court considers

that the case is out of its scope due to the
involvement of a substantial question of law outside
its scope. You can request a higher judiciary to
transfer the case.

o Lack of full jurisdiction: In some cases, the court has

limited jurisdiction over the case before it. In such
cases of shared or limited judicial issues, the court
seeking the case shall have the liberty to transfer the
case to a court having the crucial jurisdiction to hear
the case. This process ensures that the client is given
full justice before the court.

o Disagreements between party and judicial officer: In

cases where there is already disagreement between
a judicial officer and any party, the likelihood of an
unfair and partial hearing is relatively high.
Therefore, there may be an opportunity to apply for
the transfer of the case from the judicial system to
the effect that the arresting party may conduct such

CrPC P a g e 199 | 249

 proceedings.

o Violation of Principles of Natural Justice: If a party

submits evidence to the Supreme Court of any
violation of the principles of natural justice by any
court or judicial officer, then the court shall order the
transfer of the case.
The purpose of criminal law is the free and fair diffusion of
justice that is not affected by any external considerations.
Section 407 of the Criminal Procedure Code enables the party
to transfer the case anywhere within the state, while section
406 of the Code enables the party to transfer the case
anywhere in the country.

Procedure to be followed:
Subsection 3 to subsection 5 of section 407 of the Criminal
Procedure Code defines the procedure for the person applying
for the transfer of appeals and cases.

o subsection 3 of Section 407 of the Code, except for

the case where the applicant is the Attorney General
of the State, makes an appeal by motion to transfer
cases supported by affidavit or affirmation to the
High Court;

o Under subsection 4 of section 407 of the Code, the

High Court has the power to direct the bond to
execute the bond with or without surety if the
accused files an application for transfer or appeal of
any remedy the court may order him;

o In terms of subsection 5 of section 407 of the Code,

every person applying for a transfer must give
written notice to the Public Prosecutor, giving notice
of the intent to make such an application. Specify the
basis on which the application is filed. This section
instructs the courts not to make any order on the
merits of the petition filed by the person for at least
twenty-four hours between the hearing of the petition
and such notice.

CrPC P a g e 200 | 249

Stay of subordinate court proceedings
Subsection 6 of Section 407 of the Code contains provisions for
interruption of proceedings in any subordinate court. The
provision states that the application for transfer of cases by any
subordinate court shall be in the High Court. The High Court, if
deemed appropriate in the interests of justice, may withhold
the hearing of such conditions as are appropriate in the
subordinate court. However, if such an order is made by the
High Court, it will have no effect on the remand authority of the
Sessions Court, which is guaranteed by Section 309 of the
Code.

Where the High Court dismissed the application

Application made under sub-section 7 of section 407 of the
Code, subsection 2 of section 407 of the Code, contains
provisions relating to cases dismissed by the High Court. If the
High Court finds that the appeal petition or the transfer of the
case is petty and trivial, may order the petitioner to pay a
compensation of not more than one thousand rupees to any
person who opposes the application. In such cases, the court
will consider the facts and circumstances of the case and
determine the remedy.

Saving
Subsection 9 of Section 407 of the Code provides that the
savings clause and nothing contained under Section 407 of the
Code shall have no effect on the orders issued by the
Government of India under Section 197 of the Code and take
cognizance of any case involving criminal charges against any
public employee unless the court obtains prior approval from
competent authorities.

Two major case laws:

Case: K Unbalagan vs. Police Superintendent 2004

o A criminal case has been filed against Tamil Nadu's

EX- CM, who was in power from 1991 to 1997.
o Many crimes have been committed and 76 witnesses
have made statements against her
o She came to power again in 2001.
o And immediately she replaced the Public Prosecutor.
o 76 witnesses retracted their statements
CrPC P a g e 201 | 249
 oDMK leader Anbalagan filed a petition before SC to
transfer the case from Tamil Nadu to any other state.
o SC allowed it and moved the case to Bangalore.
Case: SK Shukla vs. UP 2006 State
o Criminal case filed against MLA and Minister under
the Prevention of Terrorism and Disruptive Act
o They are known for terrorism and he committed all
terrorism against witnesses and killed one witness
and the issue of consideration came up.
o The petition has been filed in SC because of serious
doubts about the livelihood of seeking justice.

Thus, the case was moved from the UP state to the MP state.

Gurucharan Das Chadha v. the State of Rajasthan

The party's reasonable anxiety that the case will not get justice
is key to the case's transfer. Petitioners do not serve justice and
there is no need to demonstrate that the case inevitably failed.
This is one of the principles of the administration of justice. The
court must decide whether such anxiety is reasonable or not,
such as the allegation of anxiety that justice cannot provide.

Surendra Kumar v. Vijayan

Under Section 408(1), the power conferred on the Session
Judge to transfer a case which is pending in the Court of
Additional Sessions Judge to another, whether the hearing has
commenced or not, it is concluded to be independent judicial
power and it is not subject to any bar imposed by Section 409
(2) on its administrative powers for recalling a case after the
trial or hearing of the case has commenced.

Ali Hussein and Anr. v. Emperor

The court said that while the High Court exercised its revision
authority, it need not comply with Section 412 of the Criminal
Procedure Code. But it can review the record for the purpose of
seeing if there is a fair trial and whether a decision has been
made based on the correct facts.

Food Inspector v. K.P. Alavikutty on 11 February 1987

CrPC P a g e 202 | 249

The Magistrate adjourned the case considering the plea of not
guilty. Subsequently, upon the re-organization of the jurisdiction
of the courts, the case was moved to another magistrate under
section 410. The magistrates who have transferred it adhere to
the predecessor order and cannot cross the pre-cognizance
stage.

Conclusion
A study of case transfer laws under the Criminal Procedure Act
of 1973 clearly shows that almost all courts, from the Supreme
Court to lower courts, have the jurisdiction to transfer cases
and appeal. Thanks to judicial precautions, the reasons for such
transfers are constantly updated.

The transfer of business does not change the nature of the

investigation or the privileges granted to the client of the
company. It is a mechanism to ensure that customers get
justice. The Supreme Court, the High Court and the Sessions
court have the power to transfer criminal cases from one court
to another.

However, the powers of each court differ. If the rights

guaranteed by the provisions of the case are exercised by the
parties to the dispute and the intentions of the parties are
confused, the courts have the right to order the plaintiff to pay
damages to the opposing party.

The amount of compensation that a court can set varies from

court to court. Cases can be withdrawn or recalled by the
Sessions Judge, Judicial Magistrate and Executive Magistrate.
An order issued under these sections must be accompanied by
the reasons for issuing such orders. The court must have a
reasonable apprehension that it will not pursue justice within its
jurisdiction until the case can be transferred.
Explain the provisions relating to compounding of
offences.

To compound means “to settle a matter by a money payment,

in lieu of other liability.” In criminal law, the power to compound
the offence is at the discretion of the victim. Legal provisions
regarding compounding of offences are mentioned
CrPC P a g e 203 | 249
under Section 320 of the Code of Criminal Procedure, 1973.
The object of Section 320 of the Code is to promote friendliness
between the parties so that peace between them is restored.
Compounding of Offences means to establish a compromise
between two parties, where the complainant agrees to have
the charges dropped against the accused. On this basis
offences are divided into 2 categories:
 Compoundable Offences
 Non-Compoundable Offences
Compoundable offences are those that can be compromised,
i.e. the complainant can agree to take back the charges levied
against the accused, whereas, non – compoundable offences
are the more serious offences in which the parties cannot
compromise.

Compoundable offences
Compoundable offences are those offences where, the
complainant (one who has filed the case, i.e. the victim), enter
into a compromise, and agrees to have the charges dropped
against the accused. Section 320 of the code deals with
compounding of offences.
These are less serious in nature and are of two different types
as mentioned under S. 320 in two different tables:

1. Compounding without the permission of the Court–

Examples of these offences include adultery, causing hurt,
defamation criminal trespass.
2. Court permission is required before compounding –
Examples of such offences are theft, voluntarily causing
grievous hurt, assault on a woman with intention to outrage her
modesty, dishonest misappropriation of property amongst
others, criminal breach of trust.
In Bhagyan Das vs The State of Uttarakhand & anr, [i] The
Supreme Court has observed that a court has discretion to
reject a plea to compound an offence having social impact,
even if the offence is compoundable under Section 320 of the
Code of Criminal Procedure. “Merely because an offence is
compoundable under Section 320 CrPC, still discretion can be
exercised by the court having regard to nature of offence.”
Compounding without the permission of the Court:

CrPC P a g e 204 | 249

  The offences punishable under the Sections of the Indian
Penal Code, 1860 specified in the first two columns of the
Table next following may be compounded by the persons
mentioned in the third column of that table.

Few examples of such offences are:

Section of
Person by whom offence
Offence the I.P.C.
may be compounded
applicable
1. Uttering words, etc. with The person whose religious
deliberate intent to wound the298 feelings are intended to be
religious feelings of person wounded
The person to whom the hurt
2. Causing hurt 323, 334
is caused
3. Wrongfully restraining The person restrained or
341, 342
confining any person confined
4. Assault or use of criminal The person assaulted or to
352, 355, 358
force whom criminal force is used
5. Mischief, when the only
The person to whom the loss
loss or damage caused is loss426, 427
or damage is caused
or damage to a private person
The person in possession of
6. Criminal trespass 447
the property trespassed upon
The person in possession of
7. House-trespass 448
the property trespassed upon

Court permission is required before compounding –

The offences punishable under the Sections of the Indian Penal
Code, 1860 specified in the first two columns of the Table next
following may, with the permission of the Court before which
any prosecution for such offence is pending, be compounded by
CrPC P a g e 205 | 249
the persons mentioned in the third column of that Table. Few
examples of such offences are:
:
Section
of thePerson by whom
Offence I.P.C. offence may be
applicabl compounded
e
1. Voluntarily causing The person to whom
325
grievous hurt hurt is caused
2. Voluntarily causing
The person to whom
grievous hurt on grave and335
hurt is caused
sudden provocation
3. Causing hurt by doing an
act so rashly and negligently The person to whom
337
as to endanger human life or hurt is caused
the personal safety of others
4. Causing grievous hurt by
doing an act so rashly and
The person to whom
negligently as to endanger338
hurt is caused
human life or the personal
safety of others
5. Wrongfully confining a
343 The person confined
person for three days or more
6. Wrongfully confining for
344 The person confined
ten or more days
7. Wrongfully confining a
346 The person confined
person in secret
8. Assault or criminal force to The woman assaulted
woman with intent to outrage354 to whom the criminal
her modesty force was used

In Gian Singh v. State of Punjab[ii], wherein the constitution

bench had observed that compounding powers should be
exercised by the Court considering the social impact of the
crime in question vis-à-vis its individual impact, as decisive
criterion for quashing power in such cases.

Other provision governing Compounding of Offences-

CrPC P a g e 206 | 249

The general rule embodied under sub section (3) provides that
when any offence is compoundable under Section 320 of the
Code, the abetment of such offence or an attempt to commit
such offence (when such attempt is itself an offence) may be
compounded in like manner. The Supreme Court, in the
landmark case of Mahesh Chand vs. State of Rajasthan[iii],
gave permission to compound attempt to commit murder
offence under Section 307 IPC.
As per Sub Section (5) of Section 320, when the accused has
been committed for trial or when he has been convicted and an
appeal is pending, no composition for the offence shall be
allowed without the leave of the Court to which he is committed
or, as the case may be, before which the appeal is to be heard.
Application for compounding the offence shall be made before
the same court before which the trial is proceeding.
Sub Section (6) provides that a High Court or Court of Session
acting in the exercise of its powers of revision under Section
401 may allow any person to compound any offence which such
person is competent to compound under Section 320 of the
Code.
Sub section (7) provides for a limitation to compounding of
offences. It says that no offence shall be compounded if the
accused is, by reason of a previous conviction, liable either to
enhanced punishment or to a punishment of a different kind for
such offence.
Effect Of Compounding Of An Offence
Sub Section (8) prescribes that a compounding of offence under
section 320 shall have the effect of acquittal of the accused
with whom such offence has been compounded.
Kulwinder Singh vs. State of Punjab & Another[iv], High Court
held that “the offence under sections 406 and 120-B I.P.C qua
the present petitioners in both these revision petitions are
compounded and the conviction and sentence of the petitioners
is set aside.”

CrPC P a g e 207 | 249

Prohibition Regarding Compounding Of Offences
Sub section (9) bars any contravention from the provisions of
Section 320. It prescribes that no offence shall be compounded
except as provided by Section 320 of the Code.
Compounding Provisions in other Countries
Compounding a felony was an offence under the common law
of England and was classified as a misdemeanor. It consisted of
a prosecutor or victim of an offence accepting anything of value
under an agreement not to prosecute, or to hamper the
prosecution of, a felony. To “compound”, in this context, means
to come to a settlement or agreement. It is not compounding
for the victim to accept an offer to return stolen property, or to
make restitution, as long as there is no agreement not to
prosecute.
Under the common law, compounding a felony was punishable
as a mis demeanor. Many states have enacted statutes that
punish the offense as a felony. Compounding a misdemeanor is
not a crime. However, an agreement not to prosecute a
misdemeanor is unenforceable as being contrary to public
policy. Criminal liability for compounding is pervasive in
American law, at least in theory. In forty-five states, the
compounding of a crime may be prosecuted as a statutory
offense, in two others it apparently may be prosecuted as a
common law offense.
Compounding has been abolished in England and Wales, in
Northern Ireland, in the Republic of Ireland, and in New South
Wales.
Illustrations-
1. If X causes hurt to Y, in such circumstances the offence can
be compounded only on the instance of the person to whom
the hurt is caused i.e. Y.
2. If A wrongfully confines B for three days or more, such an
offence can be compounded on permission of court on the
instance of the person confined i.e. B.

CrPC P a g e 208 | 249

3. If an offence has been compounded in favor of X,
compounding of such offence under section 320 shall have the
effect of acquittal of the accused.
Frequently Asked Questions (FAQs)-
1. What is the difference between Compounding of Offences
and Plea Bargaining?
The distinction between compounding of offence and plea
bargaining is that compounding is stigma free, whereas plea
bargaining has some taint of guilt. Lesser punishment is
awarded in plea bargaining for not fully contesting the case.
2. What is the effect of Compounding under section 320?
According to Section 320(8), compounding of offence shall have
the effect of acquittal of the accused.
3. When the person who would otherwise be competent to
compound an offence under Section 320 is dead, who can
compound on his behalf?
According to Section 320(4) (b), When the person who would
otherwise be competent to compound an offence under Section
320 is dead, the legal representative, of such person may, with
the consent of the Court, compound such offence.

CrPC P a g e 209 | 249

Disposal of property under CrPC.
What do you mean by disposal of property
Disposal is defined as the process which is used by the court for
decommission and disposal of an assets due to ageing or some
changes in performance and the capacity requirement of the
property. Decision to dispose of or divest a property or an asset
requires thorough examination and economic appraisal. In
general, we dispose of property through transfer, sale, or by
means of other ways but in the criminal law, property can be
disposed of in accordance with the provisions laid down under
CrPC.
Analysis of provisions dealing with disposal of property under
CrPC
The author here has tried to discuss the various provisions that
come under the discussion when talking about disposal of
property.
Section 451 – order for custody and disposal of property
pending trial in certain case
According to Section 451 , the court has the power to make
such an order which fits according to the case and subject to
speedy and natural decay, or otherwise expedient to do so in
relation to property of any kind or document which is produced
before the court or is in custody during inquiry or trial. After
recording all the necessary evidence, the court gives the order
in regards to the property to be sold or disposed of.
In the case of Manoj Kumar Sharma v. Sadhan Roy (1993), a
truck purchased under hire purchase agreement was seized
because the purchaser was not paying instalment and he had
transferred the truck to a third party. It was held that the
financier being the real owner is entitled to the custody of the
truck seized and it would be injudicious to give custody to a
person in whose name the vehicle is registered.

CrPC P a g e 210 | 249

Section 452 – order for disposal of property at conclusion of
trial
In this section when the inquiry or trial in any criminal court is
concluded, order for disposal of property is made. Proceeding
may have concluded either in conviction, acquittal or discharge
of the accused. What is necessary for application of this action
is that the property in dispute must have either been produced
before it or is in the custody of the court. This section deals
with the disposal of property regarding which an offence has
been committed. The court under this section cannot decide
any claim to manage any property or any title to the property,
but shall dispose of the property on the basis of possession.
In Suleman Issa v. State of Bombay (1954), it was observed
that although the power of the high court under this section no
doubt extends to confiscation of property in the custody of the
court, it is not every case in which the court must necessarily
pass an order of confiscation irrespective of the circumstance of
the case.
Section 453 – Payment to innocent purchaser of money found
on accused
This section talks about the person who is otherwise innocent
but has been convicted in the case of theft or receiving stolen
property, receiving payment as a consequence of fabricated
accusation.
Section 454 – Appeal against order under Section 452 or
Section 453
Section 454 idealises the concept of appeal that may be given
birth by the aggrieved party who stands dissatisfied with the
orders passed either under Section 452 or Section 453. Upon
such appeal, directions stating stay, modification or alteration
of the order causing prejudice to the appellant be made. Such
powers can also be exercised by a Court of Appeal.
Section 455 – Destruction of libellous and other matter
Section 455 talks about competent court ordering destruction
of copies of all such things which are related to the convictions
made in accordance with Sections 292, 293, 501 or 502 of
CrPC P a g e 211 | 249
the Indian Penal Code, 1860. Clause 2 of this provision also
states that following the direction given out in Clause 1, courts
may ask for disposal of necessary matters in connection to
conviction made under Sections 272, 273, 274, or 275 of the
Indian Penal Code, 1860.
Section 456 – Power to restore possession of immovable
property.
If a person has been wrongfully dispossessed by use of force,
possession must be restored under Section 456, to whomsoever
it belongs. An order under Section 456 not only binds the
accused but also binds any other person including the legal
representative of the accused who may be in possession of
such property. It is to be noted that possession could be
restored only by a competent court.
The observation which was made in the case of State of H.P v.
Paras Ram (2008), stated that the police could not on their
own, deliver possession of the premises to the complainant
when the same were found to be in possession of the accused
and it is the magistrate who can pass an interim order for
disposal of the seized property according to law.
Section 457 – Procedure in case of insolvency or death of surety
or when a bond is forfeited
As per Section 457, criminal courts have been vested with the
jurisdiction to provide custody of seized property/articles at the
investigation stage, when those seized property are not
produced before the court. The provision lays down the
procedure that needs to be followed by the police officials
following the seizing of a property.
Section 458 – Procedure where no claimant appears within six
months
When it comes to Section 458, the court has been given the
competency to direct the appropriate state government to
dispose of property that remains unclaimed for a period of 6
months by its owner.
Section 459 – Power to sell perishable property

CrPC P a g e 212 | 249

According to this section , when the value to goods is less than
Rs. 500 and the goods are coming within the ambit of
perishable property which is subject to natural and speedy
decay and the magistrate finds that the sale of the property is
better for the owner then he may direct the same sale. The
provision aims to prevent property from getting wasted.

Conclusion
As we come to the end of this article, it is ideal to state that the
provisions surrounding the concept of disposal of property
remains relevant for time immemorial as they have clearly laid
down the entire process involved in the same alongside the
duties vested on police authorities and the judiciary.

Write explanatory note on : Complaint under CrPC.

What Is Criminal Complaint?
The code of criminal procedure defines the term complaint' as
any allegation made orally or in writing to a Magistrate. It's
done with a view to his taking action under this Code, that
some person, whether known or unknown, has committed an
offence, but does not include a police report.
Cognizance By Magistrate Section 190:
Cognizance'' in general meaning is said to be knowledge or
notice', and taking cognizance of offences means taking notice,
or becoming aware of the alleged commission of an offence.
The dictionary meaning of the word cognizance is judicial
hearing of a matter. The judicial officer will have to take
cognizance of the offence before he could proceed with the
conduct of the trial. Taking cognizance does not involve any
kind of formal action but occurs as soon as a magistrate as
such applies his mind to the suspected commission of an
offence for the purpose of legal proceedings. So, taking
cognizance is also said to be the application of judicial mind.
It includes the intention of starting a judicial proceeding with
respect to an offence or taking steps to see whether there is a
basis for starting the judicial proceeding. It is trite that before
CrPC P a g e 213 | 249
taking cognizance that court should satisfy that ingredients of
the offence charged are there or not. A court can take
cognizance only once after that it becomes functus officio.
If a magistrate involves his mind not for reason of proceeding
as mentioned above, but for taking action of some other kind,
example ordering investigation under Section 156(3) or issuing
the search warrant for the purpose of the investigation, he
cannot be said to have taken cognizance of offence.
The term Cognizance of offence' has not been defined in the
Criminal Procedure Code. Section 190, 191, 192, 193, 194, 195,
196, 197, 198, and 199 deals with methods by which and the
limitations subject to which various criminal courts are
established to take cognizance of offences. However, the
meaning of the term is well defined by the Courts. Taking
cognizance is the first and foremost steps towards the trail. The
judicial officer will have to take cognizance of the offence
before he could proceed to conduct or trail.
In Section 190, Any Magistrate of the first class and the second
class may take cognizance of any offence:
Upon receiving a complaint of facts related to offences. Upon
police reports of facts. Upon information received from a person
(other than a police officer), or upon his own knowledge.
Section 200-203 talks about complaint to magistrate.
Examination Of Complaint Section 200:
A Magistrate with whom compliant filed, shall examine the
complainant and also witnesses on oath. The contents in the
compliant shall also examined and reduced in writing in a
report. The report shall have signature of complainant,
witnesses and also the Magistrate. Provided that, when the
complaint made in writing, the Magistrate need not examine
the complainant and the witnesses:
if a public servant acting or purporting to act in the discharge of
his official duties or a Court has made the complaint; or
if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 192:

CrPC P a g e 214 | 249

Provided further that if the Magistrate transfers the case to
another Magistrate under section 192 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them.
The procedure has been enunciated in Section 200 of Code of
Criminal Procedure Act, 1973. For the purpose of explain the
main points in a nutshell for practical use, I'll state them in
bullet points:
The complaint has to be filed with the magistrate who has the
jurisdiction to try the offence complained of. However, in cases
where the complaint is accidentally filed with the magistrate
not having the jurisdiction, the magistrate is duty bound to
return the complaint to be presented to the appropriate
magistrate by stating the necessary details thereof.
The complaint may be made orally or in writing. However, it is
always better to furnish it in writing.
Unlike the filing of the FIR, where after the police straightaway
proceed to investigate the offence complained of and arrest the
suspects, in case of the complaint the magistrate will not
proceed with it without examining the complainant and
witnesses (note-only the witnesses who are present at the time
of filing such complaint).
Thereafter the magistrate will make a written report of the
examination and sign it himself as well as get it signed by the
complainant and the witnesses.
Thereafter if the magistrate is satisfied that the complaint
coupled with the examination discloses an offence, he shall
proceed with taking cognizance of the offence (which simply
means that he would summon the accused suspects for the
purpose of trial)
However, if the magistrate is not satisfied that the complaint
(and examination) discloses any offence, he may take one of
the two options available to him: he may either dismiss the
complaint or he may order the police to undertake some further
investigation under Section 202 of the Code.

CrPC P a g e 215 | 249

After the police officer reports back to the magistrate his
findings the magistrate may proceed with either of the steps
stated in point 5 and point 6 (minus the investigation order, of
course, which has already been given).
Section 201 of CRPC Procedure by Magistrate not competent to
take cognizance of the case:
If the complaint is made to a Magistrate who is not competent
to take cognizance of the offence, he shall:
if the complaint is in writing, return it for presentation to the
proper Court with an endorsement to that effect;
if the complaint is not in writing, direct the complainant to the
proper Court.
Section 202 of CRPC Postponement of issue of process:
Any Magistrate , on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has been
made over to him under section 192, may, if he thinks fit,
postpone the issue of process against the accused, and either
inquire into the case himself or direct an investigation to be
made by a police officer or by such other person as he thinks
fit, for the purpose of deciding whether or not there is sufficient
ground for proceeding:
Provided that no such direction for investigation shall be made:
where it appears to the Magistrate that the offence complained
of is triable exclusively by the Court of Session; or
where the complaint has not been made by a Court, unless the
complainant and the witnesses present (if any) have been
examined on oath under section 200.
In an inquiry under sub-section (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session, he
shall call upon the complainant to produce all his witnesses and
examine them on oath.

CrPC P a g e 216 | 249

If an investigation under sub-section (1) is made by a person
not being a police officer, he shall have for that investigation all
the powers conferred by this Code on an officer in charge of a
police station except the power to arrest without warrant.
Section 203 of CRPC Dismissal of complaint
If, after considering the statements on oath (if any) of the
complainant and of the witnesses and the result of the inquiry
or investigation (if any) under section 202, the Magistrate is of
opinion that there is no sufficient ground for proceeding, he
shall dismiss the complaint, and in every such case he shall
briefly record his reasons for so doing.
If the Magistrate does not satisfy that there is sufficient ground
to issue process, then he shall dismiss the complaint under
section 203 of the CrPC.
How to challenge the complaint:
When the Magistrate issued the process against the accused,
he cannot take it back. The Code of Criminal Procedure does
not provide the power of review so the Magistrate could not
review its process or cancel the summon or warrant.
If the court has issued the process, then you cannot file any
recall application under section 203 CrPC. In Adalat Prasad v.
Rooplal Jindal, (2004) 7 SCC 338 the Supreme Court held that if
the Magistrate did not dismiss the complaint and issued
process, then the accused cannot approach the court under
section 203 CrPC for dismissal of the complaint because the
stage of section 203 has already over.
Hence, you cannot challenge the complaint under section 203
of the CrPC. The court does not hear the accused at the stage
of section 203. The accused has no role at this stage (Bholu
Ram v. State of Punjab, (2008) 9 SCC 140)
In the absence of the review power, you can challenge the
complaint under section 482 CrPC. You may invoke the inherent
power of the High Court under section 482 CrPC to do justice in
your case (Iris Computers Ltd. v. Askari Infotech (P) Ltd., (2015)
14 SCC 399).

CrPC P a g e 217 | 249

What procedures have to be followed when warrant
remains unexecuted.
The courts have been empowered with sufficient powers to
ensure the execution of warrants issued against an accused.
Sections 82 to 86 of the Code deal with such powers of the
court regarding the proclamation and attachment. In cases
where a warrant is unexecuted, the court may issue a
proclamation under Section 82 of this Code, or the property of
the person against whom the warrant was issued can be
attached as per Section 83 of the Code. Usually, in the first
instance, the court issues a summons. In cases of failure on the
part of the accused, the court shall issue a warrant of arrest. In
a situation where the execution of the warrant also fails, in such
a case the court may proceed with the issuance of proclamation
(Section 82) and attach the property of the person (Section 83)
who is eluding or dodging the service of process.
In the case of Dinesh Chandra Tiwari v. State of U.P. and Ors.
(2000), the applicant’s name was present in the F.I.R. However,
he was not challenged after the investigation. The evidence
that was discovered showed the involvement of the applicant in
the alleged offence. Based on the evidence that was procured,
the trial court executed a non-bailable warrant against the
applicant and simultaneously issued a process under Section
82. The Allahabad High Court held that the trial court is
required to issue a summons first, and under the act of non-
compliance with the summons, the court should have moved
further with a non-bailable warrant and other processes. The
court should not directly move forward with the issuance of a
non-bailable warrant.
Other rules
Sections 87 to 90 provide other rules that provide for the
appearance of the accused. Section 87 of the Code provides for
the issuance of a warrant as an alternative to or in addition to a
summons. As provided under this Section, the court can do so
in a case where there appears to be a reasonable possibility
that the person against whom the summons is to be issued or
has been issued already may abscond or l not obey the

CrPC P a g e 218 | 249

summons. However, the court must record the reason in writing
for issuing the warrant.
According to the provision provided under Section 88 of the
Code, the court may ask for a bond or an amount of surety for
the appearance of the accused.
The Code also provides for the provision of arresting the
accused in case of breach of the bond of appearance. The court
can order the arrest of such a person who has not complied
with the direction of the court to appear before it. This provision
is enumerated under Section 89 of the Code. In the case
of Pannalal v. R.K. Sinha (1965), the Court held that Section 89
provides a right of cancellation of bond and orders a rearrest of
the accused or witness in case he fails to appear before the
court.
Section 90 of this Code provides that the provisions of Chapter
VI of the Code apply to all summons and warrant cases.
Section 205 CrPC
All the cases in which summons are issued come under the
purview of Section 205 of the CrPC. The Section provides for
the condition that the Magistrate may dispense with the
personal attendance of the accused. It states that if the
Magistrate has enough reasons to issue a summons, he may
dispense with the personal attendance of the accused and
permit his pleader to appear on his behalf. However, if the
Magistrate, as per his discretion, feels that the accused’s
attendance is necessary at any stage of the proceeding, he
may pass such order by issuing a summons. However, if a
warrant is issued against a person, then the Magistrate cannot
dispense with the accused’s personal attendance.
As for women, they do not possess any specific rights where
they are exempted from appearing in court during an inquiry or
a trial, but they should not be forced to appear before the court
unless the conditions necessarily demand so. The court shall
move forward with dispensing the accused’s attendance after
considering several factors like her social status, customs and
practices, and the intensity of her personal appearance in light

CrPC P a g e 219 | 249

of the nature of the offence and the trial stage. This view was
opined by the Calcutta High Court in the case of Rajlakshmi
Devi v. the State (1951).
In the case of S.V. Majumdar and Ors. v. Gujarat State Fertilizer
Co. Ltd. (2005), it was held that the court shall consider
whether any useful purpose will be served if the accused is
brought for personal attendance. It shall further consider
whether, in the absence of the accused’s attendance, the
progress of the trial will be hampered while dealing with an
application for dispensing the attendance of the accused. In
case the Magistrate feels that the accused is seeking this
application to cause a delay in the trial, he may refuse the
accused’s application.
Section 317: an overview
As per the provisions of Section 317 of the CrPC, the presence
of an accused in a trial or inquiry can be exempted by the judge
or Magistrate if the court deems it fit. This Section is almost the
same as that of Section 540A of the earlier code (repealed), i.e.,
the Code of Criminal Procedure, 1898. The only change that has
been carried out in the present Section is the addition of the
word “or that the accused persistently disturbs the proceedings
in court” in 317(1).
Subsection (1) of this Section states that if the judge or
Magistrate is satisfied that the personal attendance of the
accused is not necessary for the interest of justice or if the
accused interrupts the proceedings of the court at any stage of
a trial or inquiry, proceed further with the trial, thereby
dispensing the presence of the accused. Provided that the
accused is represented by his pleader in court. Also, the
Magistrate or judge has to record the reasons in writing if he
orders such a dispensation.
The second subsection of Section 317 of the CrPC provides that
in case the accused is not represented by a pleader, or if the
court considers his attendance necessary, then the court may
either adjourn the trial or try the case separately. However, the
judge or Magistrate shall positively record the reasons in
writing.
CrPC P a g e 220 | 249
It is important to note that the provisions of Section 317 do not
apply to the trials that are initiated under the Prevention of
Corruption Act, 1988. However, an exception has been added to
this well-settled principle of law after the insertion of Section
22(c) in the Prevention of Corruption Act, 1988. As per this
subsection, the special judge has been entrusted with the
power to proceed with the trial or inquiry at any stage in the
absence of the accused or even his pleader. Although
subsections (1) and (2) do not apply to such trials.
Scope and applicability of Section 317 CrPC
This Section 317 empowers the court to proceed further with
the trial or inquiry, thereby dispensing with the personal
attendance of the accused. This is done by the court if the
accused’s attendance is not felt necessary keeping in view the
interest of justice or if the court finds the accused’s presence
creating a disturbance in the trial. However, if in the later stage
of the trial or proceedings, the court finds the accused’s
presence necessary, then the court may order the accused to
attend the trial or proceeding.
The term “inquiry,” which has been used in this Section is
defined under Section 2(g) of the CrPC, whereas the term “trial”
connotes the stage when a change has been made, read, and
finally explained to the accused. In the case of Dhiria and Ors.
v. Jai Narain and Anr. (1969), it was held that the proceedings
begin as soon as the Magistrate takes cognizance of the
offence and examines the complainant and the witnesses as
prescribed under Sections 200 and 202, respectively. The court
went on to say that all the proceedings after this fall under the
purview of an inquiry, and the accused can file an application
under this Section even while such an inquiry is pending.
In the case of Haranahalli Ramaswamy v. K. Shama Rao S/O
Hanumantha Rao (2009), it was held that the accused under
this Section cannot be granted a permanent exemption for
appearing before the court. Also, he shall be granted such an
exemption only on a legally acceptable ground and not on
some unnecessary or irrational ground.

CrPC P a g e 221 | 249

When can the attendance of the accused be dispensed
with
An accused’s personal attendance can be exempted or
dispensed with either under Section 205 or Section 317 of the
CrPC. A joint reading of the two sections makes it crystal clear
that an accused’s presence can be exempted at any stage of
the inquiry or trial. Several factors like the circumstances of the
case, the accused’s condition, and the necessity of the
accused’s personal attendance are taken into consideration
while exempting or dispensing with the attendance of the
accused during a trial or an inquiry. The facts and
circumstances of the case solely determine whether the
accused shall be granted the exemption or not. Usually, an
accused’s personal attendance is compulsory in cases of
serious offences that involve moral turpitude. However, if the
punishment for offences is fine only, exemption from personal
attendance has become a rule, and for the former situation, the
presence of the accused is the rule. This view was reiterated by
the Apex Court in the case of Sushila Devi v. Sharda Devi
(1960).
Ordinarily, the court allows the application of the accused and
exempts him from appearing in the inquiry or trial, where the
accused’s attendance may cause disturbance and
inconvenience in the proceeding. Also, it should be noted that
the comparative advantage should not outweigh the absence of
the accused. The court has time and again emphasised this
point while dealing with applications under this Section, the
cases of M/S. Bhaskar Industries Ltd. v. M/S. Bhiwani Denim and
Apparels Ltd. (2001) and Durowelds Pvt. Ltd. and Ors. v. TISCO
(2002) are two such cases.
The nature of the allegations, the quantum of prejudice to the
complainant based on the presence of the accused, the
conduct of the accused, and the distance at which the accused
resides or carries his business are some other factors that
should be considered by the court while dealing with an
application under this Section. The court shall emphasise the
presence of the accused only when it is in the interest of the
accused to be present at the trial or if the Court deems it

CrPC P a g e 222 | 249

necessary for the fair and effective disposal of the case. Take,
for instance, an accused’s presence, which is crucial in the
identification of the witnesses. Also, the High Courts and
Supreme Court have held in various instances that the court
shall deal with these applications liberally in trivial and
technical cases where the accused is an old person, a sick man
or woman, a woman, a factory worker, or a daily wager.
Application for exemption from personal attendance of
accused:
An accused is entitled to file an application for exemption
from appearing personally in court either under Section 205 or
under Section 317 of the Code, as the facts and circumstances
of the case may be. In a case where only summons have been
issued, the accused can file an application under Section 205.
When the trial or inquiry is pending, the accused can seek an
exemption under Section 317 of the Code. The accused can file
such an application through his pleader, or he can ask the court
himself for exemption by providing the reasons behind his plea
for exemption. There is no hard and fast rule expressly provided
under the code that clarifies the conditions in which such an
exemption is to be granted. The grant of exemption is however
a discretion of the court and is not a matter of right. However,
as discussed above and quoted in a plethora of judgments, the
court must not unnecessarily enforce the presence of an
accused, even if the trial or inquiry does not necessarily
demand the accused’s presence.
In the case of Lalit Mohan Deb Burman v. Haridoy Ranjan Deb
Burman (1956), it was held that the applicant is not necessarily
required to file a written application under this Section. The
Magistrate has the authority to move forward in the presence of
an oral application also.
In the case of Arvind Kejriwal v. State of U.P. (2015), it was held
that Sections 205 or 317 of the CrPC, which provide an
exemption to the accused, will not apply in warrant cases until
and unless the accused has been released on bail or has
furnished bail bonds.

CrPC P a g e 223 | 249

The courts in various instances have given the exemption to
the accused by using the term “incapable of remaining before
the court.” This term connoted that the accused is not
physically fit or denoted the physical inability of the accused to
be present before the court. However, it is not necessary that
this incapability only denotes physical ailments. There may be
some other reasons also that render the accused from coming
before the court. Also, in the case of Trilochan Misra and Ors. v.
the State (1951), it was held that a mere point of heavy
expenditure or inconvenience in travelling to the court will not
render the accused incapable of coming to the court.
How is Section 317 different from Section 205
Although the two Sections have a wide range of similarities,
they both have a clear distinction from each other. Section 205
comes into the picture even before the charges are framed, and
the proceedings have just begun. Under Section 317, the
accused can be given an exemption when the trial or inquiry of
a case is pending, whereas, in Section 205, such an application
is filed at an early stage, at the time when just summons have
been issued. This view was clarified by the court in the case
of Aditya Pd. Bagchi v. Jogendra Nath Maitra (1948), which was
again reiterated in the case Sultan Singh Jain v. the State
(1951).
Section 317 deals with exemption after the commencement of
a trial or inquiry and has a scope till the expiration of the trial,
and Section 205 deals with exemption at the beginning of the
proceedings. Although in both Sections the court can dispense
with the accused’s attendance even in the absence of prayer
by the accused if the Magistrate thinks that the accused’s
absence won’t hinder the course of justice. However, he shall
record the reasons in writing. By Section 205, the accused can
be allowed to make even his first appearance before the court
through his counsel.

Explain Preventive Action by the Police Under Code of

Criminal Procedure.
Preventive measures to be taken by police have been given
under Section 149, 150 and 151 of the CrPC.
CrPC P a g e 224 | 249
Police to prevent cognizable offences
According to Section 149 of CrPC, every police officer is
empowered to interpose and make his best efforts in
preventing a cognizable offence. A police officer is therefore
granted a duty as well as an authority at the same time.
Cognizable offences are serious in nature like murder, rape,
dowry death, kidnapping, etc.
Role of Section 149 in the CAA-NRC protests
The Mumbai Police on February 8, 2020, had served notices
under Section 149 CrPC to the protestors at Nagpada in
Mumbai. The notice stated that the sit-in was being carried out
without any requisite permission from the police and also that
the police had warned the protestors verbally. The police in the
notice stated that the responsibility for any law and order that
might arise in the future lies in the hands of the protestors.
Some protestors refused to sign the notice.
Information of design to commit cognizable offences
According to Section 150 of CrPC, Every police officer on
receiving information of a potential design to commit any
cognizable offence, shall communicate such information to the
officer whom he is subordinate to, and to any other such officer
who has the authority to deal with the prevention of
commission of such cognizable offence.
Arrest to prevent the commission of cognizable offences
According to Section 151(1), CrPC, a police officer by knowing
of or receiving a design that has a potential to commit any
cognizable offence may arrest such person so designing,
without a warrant or the orders from a Magistrate, provided it
appears to the police officer that the commission of the offence
can’t be prevented by any other way.
Section 151(2), CrPC, says that the person so arrested shall not
be detained in custody for more than twenty-four hours from
the time of his arrest unless his further detention is ordered by
the Magistrate.
Ahmed Noor Mohamad Bhatti V. State of Gujarat and Ors on 16
March 2005
CrPC P a g e 225 | 249
This section has been debated from time to time. In the case
of Ahmed Noor Mohamad Bhatti V. State of Gujarat, the
Supreme Court upheld the constitutional validity of Section 151
of CrPC giving a police officer the power to arrest and detain a
person without a warrant to prevent a cognizable offence ruling
that the abuse of this power by the police officer cannot render
this provision as arbitrary and unreasonable.
The Supreme Court also said that this preventive detention act
was a necessary tool to prevent the commission of any
cognizable offence or activities.
Prevention of injury to public property
According to Section 152 of CrPC, a police officer may interpose
on his own if in his view, there is an attempt
 to injure public property whether movable or immovable;
 to remove or injure any public landmark;
 to remove or injure any buoy or other mark used for
navigation.
The term ‘public’ has been defined under Section 12 of the
Indian Penal Code.
Inspection of weights and measures
According to Section 153 of CrPC, any officer in charge of a
police station is empowered to conduct or initiate a search in
any such place where he has the suspicion that a false weight
or measuring technique is being made or sold. Certain
conditions have been laid down to exercise these powers:
 The place to be searched must lie within the local
jurisdiction of the police station;
 The place can be searched by an officer-in-charge of the
particular police station or any other police officer but not
ranking below a Sub-inspector;
 The search must be conducted according to procedures
laid out under Section 103 of CrPC;

CrPC P a g e 226 | 249

  The officer conducting the search must have reasonable
grounds to believe that there are false weights, measures
or instruments being used in that place;
 The owner or person in possession of such a place should
have the intention of deceiving or defrauding any other
person.
So, considering the above conditions, the officer is empowered
to conduct a search without any warrant or written order by the
Magistrate.
Instances of misuse of preventive action
The concept of preventive arrest is intelligible for the people
who understand the law because they can comprehend the
repercussions of lack of such preventive action laws.
However, the laws are made for all the people of India which is
a democratic country, and welfare is of utmost importance to
the State. So, it is important for common people to believe in
these prevention laws and not think of it as some tool to
infringe fundamental rights.
Nilabati Behera v State Of Orissa and Ors on 24 March 1993
In this case, Suman Behera, son of Nilabati Behera was arrested
by the Orissa Police for investigation of the offence of theft
(theft is a cognizable offence). Then, he was detained at the
police outpost. The next day, his dead body was found on the
railway track. There were lacerations on his body that indicated
an unnatural death. A letter was sent by Nilabati Behera to the
Supreme Court which took suo moto action and converted it
into a writ petition under Article 32 of the Indian Constitution.
There was an inquiry made by the district judge which added
evidence of multiple injuries being inflicted on Suman during
the police custody at Police Outpost, Jeraikela. The police
however argued in the petition filed by Nilabati Behera that
Suman Behera had managed to escape from their custody at
about 3 a.m. on the night between the 1st and 2nd December.
They argued that despite their efforts of searching him, he
could not be apprehended and thereafter, his body was found

CrPC P a g e 227 | 249

on the railway track over which there was this possibility of a
train passing over him.
The court noted that there was no logical evidence of any
search by the police to find Suman Behera and also, it was
reported by railwaymen that the police reached much later to
take charge of the body which raised questions to the
credibility of their statement. The injuries according to a
doctor’s report were caused by a blunt object which also raised
doubts of lathi blows.
The Hon’ble Supreme Court awarded a compensation of Rs.
1,50,000 to the mother of the deceased and ordered a sum of
Rs. 10,000 to be paid to the Supreme Court Legal Aid
Committee. Also, the Supreme Court directed the state of
Orissa to initiate criminal proceedings against those who were
involved in the death of Suman Behera.
Sathi Sundaresh v. The State P.S.I Of Moodigere on 12 April
2007
In this case, the petitioners were on strike on 6.3.2007
intending to pressurize the local MLA and Health Department to
provide infrastructure facilities to the M.G.M Hospital at
Moodigere. They also raised the demand for appointment of
doctors with specializations to the said hospital.
The petitioners had gathered in front of the house of the local
MLA during midnight of that day. The Sub-Inspector of Police in
the exercise of his power under Section 151 of CrPC arrested
the petitioners. The said fact was informed to the concerned
executive magistrate on 6.3.2007 itself by the police. The
Taluka Executive Magistrate passed the order in exercise of his
jurisdiction under Section 107 of CrPC and directed the Sub-
Inspector of police to send the petitioners to judicial custody
from 6.3.2007 to 12.3.2007.
But no person arrested under Section 151(1) of CrPC could be
detained for more than 24 hours from the time he was arrested
unless his further detention was required or authorized under
any other provisions of CrPC or any other law for the being in
force. The petitioners were produced before the concerned

CrPC P a g e 228 | 249

executive magistrate within 24 hours of their arrest, but not
before the judicial magistrate. The executive magistrate had
not passed any order in writing under Section 111 of CrPC
or Section 116(3) of CrPC. So, the detention could not have
been continued under Section 113 or Section 116(3).
Applicability of Section 167 of CrPC was also ruled out before
the executive magistrate.
So, the Executive Magistrate and the police obviously had no
power, jurisdiction or authority to keep the petitioners under
the custody of six days.
Medha Patkar V. State of M.P And Anr. on 25th September 2007
In this case, Medha Patkar vs the State of M.P. And Anr., certain
landowners and other persons adversely affected the Sardar
Sarovar Project gathered on the road for protesting. They
shouted slogans which were about demanding land and other
rehabilitation measures. The police had beaten up the
protesters which included women and children also and
arrested them under Section 151 of CrPC despite the fact that
they raised no apprehension of committing a cognizable
offence or disturbing public order or tranquillity. The Supreme
Court directed the State of Madhya Pradesh to pay a
compensation of Rs. 10,000 to the petitioner of this case and
each male and female protestors who were arrested by the
police in the evening of 25.7.2007 and after that, detained in
Badwani and Indore Jails because their fundamental rights
under Articles 19 and 21 of the Indian Constitution had been
violated.

Write short notes : Child welfare Committee.

Child Welfare Committee
The Child Welfare Committee is an autonomous body declared
as a competent authority to deal with children in need of care
and protection. Section 27 of Chapter V of the Juvenile Justice
(Care and Protection of Children) Act, 2015 talks about the
Child Welfare Committee.
It is mandatory to form one or more Child Welfare Committees
in every district for exercising power and to discharge the
CrPC P a g e 229 | 249
duties conferred in relation to children in need of care and
protection. This committee consists of a Chairperson and other
four members who according to the State Government are fit to
be appointed, at least one of whom should be a woman and the
other should preferably be an expert on matters that are
concerning the children.
A Secretary and other staff shall be provided by the District
Child Protection Unit for secretarial support to the Committee
for its effective functioning. For becoming a member of the
Committee, that person(who wants to become a member)
should be actively involved in health, education and welfare
activities in relation to children for at least seven years or
should be a practising professional who has a degree in child
sociology, psychiatry, psychology, law or human development.
For the appointment of a member, he should possess all the
prescribed qualifications. The duration of this appointment
should not exceed the time period of three years. Appointment
of a member shall be terminated if that member uses his power
for wrong measures, been convicted of an offence involving
moral turpitude (where such conviction has not been reversed
and he has not been granted full pardon) and does not attend
the meetings of the Committee for a period of three months of
three-fourths sitting of the Committee in that year. A review in
every three months shall be conducted by the District
Magistrate.
The Child Welfare Committee functions as a bench guided by
the powers that are conferred in the Code of Criminal
Procedure, 1973. Anyone connected to the child is allowed to
file a petition to the Magistrate of that District, who considers
and passes appropriate orders.
Procedures in relation to the committee
The procedures in relation to the committee are mentioned
in Section 28 of the Juvenile Justice (Care and Protection of
Children) Act, 2015. There should be a meeting of the
Committee at least twenty days in a month for observing rules
and procedures with regards to the transaction at its business
meetings.
CrPC P a g e 230 | 249
A sitting of the Committee is considered when there is a visit to
an existing child care institution of the Committee. A child, who
is in need of care protection and care needs to be placed in a
Children’s Home or a fit person when the Committee but is not
in session, he must be produced before an individual member
of the Committee.
The opinion of the majority shall prevail if there is any
difference of opinion between the members of the Committee.
If there is no majority of such kind then the opinion of the
Chairperson shall be considered. Subject to the provision of
minimum members of the Committee, there shall be no order
made by the Committee that declares it invalid by reason of
just the absence of a member during any stage of the
proceedings that are held.
This is applicable provided that there are at least three
members who need to be there to dispose of the case finally.
Powers
The powers of the Child Welfare Committee are laid down
in Section 29 of the Juvenile Justice (Care and Protection of
Children) Act, 2015:
 The Committee has the full authority of disposing of cases
for the care, protection and treatment of the children.
 The Committee can also dispose of cases that are for the
development, rehabilitation and protection of children that
are in need, and also to provide for the basic need and
protection that is needed by the children.
 When a Committee is constituted for any particular area,
then it has the power to exclusively deal with all
proceedings that are being held under the provisions of
this Act that are related to children in terms of need of
care and protection.
 While exercising the given powers curtailed under this Act,
the Committee is barred from performing any act which
would go against anything contained in any other law that
is in force at that time.
CrPC P a g e 231 | 249
In the case of Ms. Sheila Ramchandra Singh v. State of
Maharashtra and Others, a Government Circular dated 16 June
2016 was issued by the Women and Child Development
Department(Government of Maharashtra).
The said circular stated that the Child Welfare Committee of
Thane (Maharashtra) was not fully constituted and functional.
By looking at the above Circular, the charge of Thane Child
Welfare Committee was handed over to the Child Welfare
Committee, Mumbai on the command of the State Government.
The Deputy Secretary of the Woman and Child Development
Department presented this in the Court.
The Court directed the Child Welfare Committee, Mumbai to
take up an application dated 4 April 2016 on a priority basis
and pass appropriate orders in accordance with law. The
petition was disposed of by giving such directions.
In the case of Krishna Kumar v. Kollam Child Welfare
Committee, a writ petition was filed by the father of Kumari
Amalenthu who was a victim of a rape case.
The court was approached by her father who contended that
the child was originally handed over to the father by the Child
Welfare Committee but later, the Committee took away the
child and then that child was housed at the Nirbhaya Shelter
Home. He contended for the custody of the child as he was the
biological father. The learned Counsel had submitted that the
child had no complaint against the father.
There was no explanation as to why the child was taken to the
hospital and where the prime accused was being treated. It is
true that she may like to have an association with her biological
father. Learned counsel then submitted that the child was taken
at the instance of the police and that statement could not be
believed.
In the above circumstances, the Court was of the view that the
child will be more protected when she is in the custody of the
Child Welfare Committee. It shall be open for the petitioner to
approach the Child Welfare Committee and seek for appropriate
orders and therefore dismissed the writ petition.

CrPC P a g e 232 | 249

Functions and Responsibilities
The Functions and Responsibilities of the Child Welfare
Committee are mentioned in Section 30 of the Juvenile Justice
(Care and Protection of Children) Act, 2015. Few functions and
responsibilities are listed below:
 Cognizance of children that are produced before it.
Children who are neglected can be produced before this
committee.
 Conducting inquiry on issues relating to and affecting the
safety and well being of the children under this Act.
 To direct the Child Welfare Officers, District Child
Protection Unit and Non- Governmental organizations for
social investigation and also to submit a report before the
Committee.
 To conduct an inquiry for the declaration of fit persons for
the care of children in need of care and protection.
 To direct placing of a child in a foster care facility.
 To ensure care, protection, restoration and appropriate
rehabilitation of those children that are in need of care and
protection. This is based on that child’s individual care
plan. It also includes the passing of necessary directions to
parents or guardians or the people who are fit or children’s
homes or fit facilities in this regard.
 To select a registered institution for the placement of
every child that requires support which is based on that
child’s gender, age, disability and needs. This should be
done by keeping in mind the available capacity of the
institution.
 To recommend action that is for the improvement in the
quality of services provided to the District Child Protection
Unit and the Government of a State.
 To certify the performance of the surrender deed by the
parents and to make sure that they are given time to think
about their decision as well as to make a reconsideration
to keep the family together.
CrPC P a g e 233 | 249
 To make sure that all the efforts are made for the
restoration of the lost or abandoned children to their
families by following due process which is prescribed by
the Act.
 To declare children legally free for adoption after due
inquiry who are orphans, abandoned and surrendered.
 To take suo moto cognizance of cases and also to reach
out to the children who are in need of care and protection.
 To take action against the rehabilitation of children who
are abused sexually and are reported as children in need
of protection and care from the Committee, by the Special
Juvenile Police Unit or the local police as the case may be.
 To deal with cases referred by the Board under sub-section
(2) of 17 of this Act.
 To coordinate with various departments that are involved
in the care and protection of children. These departments
include the police, the labour department and other
agencies.
 To conduct an inquiry and give directions to the police or
the District Child Protection Unit in case of a complaint of
abuse of a child.
 To access appropriate legal services for the children.
 To perform such other functions and responsibilities as
may be prescribed.

Explain arrest and when a police officer can arrest a

person without arrest warrant.
Arrest by the police without a warrant (Section 41: CrPC)
Section 41 of the Code of Criminal Procedure (the Code
from hereinafter) contains the law for arrest by the police

CrPC P a g e 234 | 249

 without a warrant. A long list has been provided. Following
are some of the items from the list:
1. When a person commits a cognizable offense in the
presence of a police officer
The cognizable offense is defined in section 2(c) of the
Code. When a particular offense is designated as such in
Schedule I of the Code as a cognizable offense, it is called
a cognizable offense. Cognizable offenses are usually
offenses that are serious in nature.
2. When a reasonable complaint is made against a person
or credible information has been received, or a reasonable
suspicion exists that such person has committed a
cognizable offense punishable with imprisonment for a
term which may be less than seven years or which may
extend to seven years whether with or without fine if the
following conditions are satisfied:
 the police officer has reason to believe based on such
complaint, information, or suspicion that such person has
committed the said offense;
 the police officer who is arresting is satisfied that the
following conditions have been fulfilled-
a. To prevent such person from committing any additional
crime; or
b. For proper facilitation of the investigation of the crime; or
c. To stop such person from causing the proof of the crime to
disappear or tampering with such evidence in any
manner; or
d. To restrain such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to stop him from disclosing such facts to
the Court or to the police officer; or as unless such person
is arrested, his presence in the Court whenever required
cannot be ensured;
And the police officer shall record while making such
arrest, his reasons in writing, and when the police officer
CrPC P a g e 235 | 249
 does not make an arrest, he shall also write the reasons
for not making the arrest.
1. Against whom credible information has been received that
he has committed a cognizable offense punishable with
imprisonment for a term which may extend to more than
seven years whether with or without fine or with a death
sentence, and the police officer has reason to believe
based on that information that such person has committed
the said offense.
2. The person so being arrested is a proclaimed offender by
the Central or the State Government.
3. When the person being so arrested is in possession of the
stolen property and who may reasonably be suspected of
having committed an offense with reference to such
thing.
4. When the person being so arrested obstructs a police
officer while in the execution of his duty.
5. When the person being so arrested has escaped or
attempted to escape from lawful custody.
6. When the person being arrested is reasonably suspected
of being a deserter from any of the Armed Forces of the
Union.
7. Who has been concerned in, or against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act committed
at any place out of India which, if committed in India,
would have been punishable as an offense, and for which
he is, under any law relating to extradition, or otherwise,
liable to be apprehended or detained in custody in India.
8. When the person being arrested is a released convict,
commits a breach of any rule under subsection (5) of
section 356.
9. A requisition is made or received from any other police
officer. The requisition must specify the person to be
CrPC P a g e 236 | 249
arrested with the crime that was committeed by him. The
requisition may be in writing or be oral.
For all the above situations, the police have the power to
make arrests. In all the other cases, a warrant is required
from the magistrate before making an arrest. The section
is not exhaustive. There are various other Acts like Arms
Act, Explosives Act, etc, which confer such powers on
police officers.
The power to arrest is also given to public servants under
other statutes. The Custom Officers, Officers of
Enforcement Directorate, Narcotic Officers, etc also have
the right to arrest persons under different statutes.
As it can be observed from the above provision, the words,
‘reasonable suspicion’ and ‘credible information’ have
been used several times. These words have been inserted
to keep a check on the powers of the police. The police
cannot arrest on a whim or to exact revenge against the
arrestee. The information so received must be solid. The
suspicion on which the arrest is made must also be based
upon solid grounds and not mere fiction.
Important decisions
Section 41 is subject to other provisions as well. In the
State of Maharashtra v. Christian Community Welfare
Council of India [AIR 2004 SC 7], guidelines were laid down
for the arrest of female persons. It was said that the
arresting authority should make all possible efforts to
assure the presence of a woman constable. But if such
presence cannot be assured and delay to the investigation
cannot be afforded, the arresting officer can himself affect
the arrest for lawful reasons at any time of the day or
night, even in the absence of a woman constable. Reasons
for doing so must be recorded.
The police officers have to follow certain procedures whilst
arresting a person. Following procedures need to be
followed:

CrPC P a g e 237 | 249

1. Every police officer, who is making an arrest, shall
mandatorily have a precise, perceptible, and unambiguous
recognition of his name, which will assist in easy
identification of the police officer. The reason for the same
is that there must be a clear identification of the arresting
police officer and to curb personation of police officers.
2. A memorandum of arrest shall be prepared by every police
officer making an arrest. The memorandum shall be
signed by at least one member of the family of the person
who has been arrested. If no family member is available,
then it must be signed by at least one respectable
member fo the locality where the arrest has been made.
3. The memorandum so prepared must be signed by the
person so arrested.
4. It the duty of the police officer making the arrest to inform
the person so arrested that he has the right to inform of
the arrest to his family members or family. But if the
memorandum above mentioned is signed by a member of
the family, then the police officer is not obligated to inform
the person so arrested of the said right.
5. The police officer making the arrest needs only to actually
physically touch or confine the body of the person so
arrested, unless there is voluntary submission to custody
by the person being arrested by word or action. In simple
words, if the person being arrested voluntarily submits to
custody, then there is no need to physically touch or
confine the person.
6. A male officer is not to touch a female arrestee.
7. If the person forcibly resists the endeavour to arrest him,
or attempts to evade the arrest, then then arresting police
officer or any other person may use all means necessary
to make the arrest.
8. When it is intended to arrest a woman after sunset and
before sunrise, the woman police officer must mandatorily
obtain the previous permission in writing of the Judicial
Magistrate of the first class within whose jurisdiction the
CrPC P a g e 238 | 249
 crime is committed or arrest is to be made. This provision
has been inserted by the Code of Criminal (Amendment)
Act, 2005.
9. The person so arrested has to be taken to the nearest
magistrate within 24 hours of the arrest. This time
excludes the time to travel.

Child Welfare Committee

The Child Welfare Committee is an autonomous body
declared as a competent authority to deal with children in
need of care and protection. Section 27 of Chapter V of the
Juvenile Justice (Care and Protection of Children) Act, 2015
talks about the Child Welfare Committee.
It is mandatory to form one or more Child Welfare
Committees in every district for exercising power and to
discharge the duties conferred in relation to children in need
of care and protection. This committee consists of a
Chairperson and other four members who according to the
State Government are fit to be appointed, at least one of
whom should be a woman and the other should preferably be
an expert on matters that are concerning the children.
A Secretary and other staff shall be provided by the District
Child Protection Unit for secretarial support to the Committee
for its effective functioning. For becoming a member of the
Committee, that person(who wants to become a member)
should be actively involved in health, education and welfare
activities in relation to children for at least seven years or
should be a practising professional who has a degree in child
sociology, psychiatry, psychology, law or human
development.

For the appointment of a member, he should possess all the

prescribed qualifications. The duration of this appointment
should not exceed the time period of three years.
Appointment of a member shall be terminated if that
member uses his power for wrong measures, been convicted
of an offence involving moral turpitude (where such
CrPC P a g e 239 | 249
conviction has not been reversed and he has not been
granted full pardon) and does not attend the meetings of the
Committee for a period of three months of three-fourths
sitting of the Committee in that year. A review in every three
months shall be conducted by the District Magistrate.
The Child Welfare Committee functions as a bench guided by
the powers that are conferred in the Code of Criminal
Procedure, 1973. Anyone connected to the child is allowed to
file a petition to the Magistrate of that District, who considers
and passes appropriate orders.
Procedures in relation to the committee
The procedures in relation to the committee are mentioned
in Section 28 of the Juvenile Justice (Care and Protection of
Children) Act, 2015. There should be a meeting of the
Committee at least twenty days in a month for observing
rules and procedures with regards to the transaction at its
business meetings.
A sitting of the Committee is considered when there is a visit
to an existing child care institution of the Committee. A child,
who is in need of care protection and care needs to be
placed in a Children’s Home or a fit person when the
Committee but is not in session, he must be produced before
an individual member of the Committee.
The opinion of the majority shall prevail if there is any
difference of opinion between the members of the
Committee.
If there is no majority of such kind then the opinion of the
Chairperson shall be considered. Subject to the provision of
minimum members of the Committee, there shall be no
order made by the Committee that declares it invalid by
reason of just the absence of a member during any stage of
the proceedings that are held.
This is applicable provided that there are at least three
members who need to be there to dispose of the case
finally.
Powers
CrPC P a g e 240 | 249
The powers of the Child Welfare Committee are laid down in
Section 29 of the Juvenile Justice (Care and Protection of
Children) Act, 2015:
1. The Committee has the full authority of disposing of
cases for the care, protection and treatment of the
children.
2. The Committee can also dispose of cases that are for
the development, rehabilitation and protection of
children that are in need, and also to provide for the
basic need and protection that is needed by the
children.
3. When a Committee is constituted for any particular
area, then it has the power to exclusively deal with all
proceedings that are being held under the provisions of
this Act that are related to children in terms of need of
care and protection.
4. While exercising the given powers curtailed under this
Act, the Committee is barred from performing any act
which would go against anything contained in any other
law that is in force at that time.
5. In the case of Ms. Sheila Ramchandra Singh v. State of
Maharashtra and Others, a Government Circular dated
16 June 2016 was issued by the Women and Child
Development Department(Government of Maharashtra).
6. The said circular stated that the Child Welfare
Committee of Thane (Maharashtra) was not fully
constituted and functional. By looking at the above
Circular, the charge of Thane Child Welfare Committee
was handed over to the Child Welfare Committee,
Mumbai on the command of the State Government. The
Deputy Secretary of the Woman and Child Development
Department presented this in the Court.
The Court directed the Child Welfare Committee, Mumbai to
take up an application dated 4 April 2016 on a priority basis
and pass appropriate orders in accordance with law. The
petition was disposed of by giving such directions.

CrPC P a g e 241 | 249

In the case of Krishna Kumar v. Kollam Child Welfare
Committee, a writ petition was filed by the father of Kumari
Amalenthu who was a victim of a rape case.
The court was approached by her father who contended that
the child was originally handed over to the father by the
Child Welfare Committee but later, the Committee took away
the child and then that child was housed at the Nirbhaya
Shelter Home. He contended for the custody of the child as
he was the biological father. The learned Counsel had
submitted that the child had no complaint against the father.
There was no explanation as to why the child was taken to
the hospital and where the prime accused was being treated.
It is true that she may like to have an association with her
biological father. Learned counsel then submitted that the
child was taken at the instance of the police and that
statement could not be believed.
In the above circumstances, the Court was of the view that
the child will be more protected when she is in the custody of
the Child Welfare Committee. It shall be open for the
petitioner to approach the Child Welfare Committee and seek
for appropriate orders and therefore dismissed the writ
petition.

Functions and Responsibilities

The Functions and Responsibilities of the Child Welfare
Committee are mentioned in Section 30 of the Juvenile
Justice (Care and Protection of Children) Act, 2015. Few
functions and responsibilities are listed below:
1. Cognizance of children that are produced before it.
Children who are neglected can be produced before this
committee.

CrPC P a g e 242 | 249

2. Conducting inquiry on issues relating to and affecting
the safety and well being of the children under this Act.
3. To direct the Child Welfare Officers, District Child
Protection Unit and Non- Governmental organizations
for social investigation and also to submit a report
before the Committee.
4. To conduct an inquiry for the declaration of fit persons
for the care of children in need of care and protection.
5. To direct placing of a child in a foster care facility.
6. To ensure care, protection, restoration and appropriate
rehabilitation of those children that are in need of care
and protection. This is based on that child’s individual
care plan. It also includes the passing of necessary
directions to parents or guardians or the people who are
fit or children’s homes or fit facilities in this regard.
7. To select a registered institution for the placement of
every child that requires support which is based on that
child’s gender, age, disability and needs. This should be
done by keeping in mind the available capacity of the
institution.
8. To recommend action that is for the improvement in the
quality of services provided to the District Child
Protection Unit and the Government of a State.
9. To certify the performance of the surrender deed by the
parents and to make sure that they are given time to
think about their decision as well as to make a
reconsideration to keep the family together.
10. To make sure that all the efforts are made for the
restoration of the lost or abandoned children to their
families by following due process which is prescribed by
the Act.
11. To declare children legally free for adoption after due
inquiry who are orphans, abandoned and surrendered.
12. To take suo moto cognizance of cases and also to
reach out to the children who are in need of care and
protection.
13. To take action against the rehabilitation of children
who are abused sexually and are reported as children in
need of protection and care from the Committee, by the
CrPC P a g e 243 | 249
 Special Juvenile Police Unit or the local police as the
case may be.
14. To deal with cases referred by the Board under sub-
section (2) of 17 of this Act.
15. To coordinate with various departments that are
involved in the care and protection of children. These
departments include the police, the labour department
and other agencies.
16. To conduct an inquiry and give directions to the
police or the District Child Protection Unit in case of a
complaint of abuse of a child.
17. To access appropriate legal services for the children.
18. To perform such other functions and responsibilities
as may be prescribed.
Conclusion
A reading of Section 27 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, tells us that the State
Government constitutes Child Welfare Committees in various
districts. These Child Welfare Committees are constituted for
exercising powers, performing procedures in relation to the
committee, carrying out functions and responsibilities and
discharging duties that are applicable to the committees that
work for the protection and care of children by this Act.
Child protection is about protecting children against any
perceived or real danger which would pose a risk to their life
or childhood. It focuses on reducing their vulnerability to any
kind of harm and ensuring that no child falls out of the social
safety net. Those children who do, should receive necessary
care, protection and the moral support to bring them back to
safety. The Child Welfare Committee works to provide such
care to the children.

CrPC P a g e 244 | 249

Judgment under the Criminal Procedure Code, 1973.
Judgement means the reasoning given by the court in order to
support its decision. No special paramount is given to judgment
except saying that it represents the reason the led the court to
its decision. According to Wharton’s law lexicon, judgment is A
judicial determination putting an end to the action by
any award or redress to one party or discharge of the
other as the case may be.

Definition: Judgment is defined under sec. 2(9) of the Civil

Procedure Code as follows:
Judgment means the statement given by the judge on
the ground of a decree or order.
A judgment is said to be the final decision of the court on the
said matter before the court in the form of suit towards parties
and to the world at large by formal pronouncement in open
court. Order 20, Rule 4(2) says that a judgment shall contain a
concise statement of the case, the points for determination, the
decision thereon and all the reasons for such decision.

Judgment: The court, after the case has been heard, shall
pronounce judgment in open court either at once or as soon
thereafter as may be practicable, on some future day and when
the judgment is to be pronounced on some future day, the
court shall fix a day for the purpose of which due notice shall be
given to the parties or their pleaders. [1] It is not necessary
that the court shall read out the whole judgment but may only
pronounce the result of the case or read the operative portion
of the judgment. The judge is not expected to write his
judgment before the finishing of the entire evidence and
hearing the arguments of counsel and if he does so he commits
a gross irregularity in the trial of the case as mention in Mst.
Kaushilya v. Arat Lal. 1933.

The court after the case has been heard shall pronounce
judgment in an open court, either at once or as soon thereafter
as may be practicable and when the judgment is to be
CrPC P a g e 245 | 249
pronounced on some future day, the Court shall fix a day for
that purpose, of which due notice shall be given to the parties
or their pleaders. [2]

Provided that when the judgment is not pronounced at once,

every endeavour shall be made by the Court to pronounce the
judgment within thirty days from the date on which the hearing
of the case was concluded but where it is not practicable so to
do on the ground of the exceptional and extraordinary
circumstances of the case, the Court shall fix a future day for
the pronouncement of the judgment, and such day shall not
ordinarily be a day beyond sixty days from the date on which
the hearing of the case was concluded, and due notice of the
day so fixed shall be given to the parties or their pleaders.

Where a written judgment is to be pronounced, it shall be

sufficient if the findings of the court on each issue and the final
order passed in the case are read out and it shall not be
necessary for the court to read out the whole judgment .
The judgment may be pronounced by dictation in open court to
a shorthand-writer if the judge is specially empowered by the
High Court in this behalf: Provided that where the judgment is
pronounced by dictation in open court, the transcript of the
judgment so pronounced shall, after making such correction as
may be necessary, be signed by the Judge, bear the date on
which it was pronounced, and form a part of the record. [4] A
Judge shall pronounce a judgment written but not pronounced
by his predecessor.
Contents of Judgment: Judgments of courts other than small
causes shall contain:
a. A concise statement of the case
b. The points for determination
c. The decision thereon
d. The reasons for the decision
Judgments of a Court of Small Cause need not contain more
than (b) and (c) i.e. the points for determination and the
CrPC P a g e 246 | 249
decision thereon. [6] In suit, in which issues have been framed,
the court shall state its finding or decision with the reasons
therefore, upon each separate issue unless the finding upon
any one or more of the issues is sufficient for the decision of
the suit. [7]

It is not sufficient for the trial court merely to state in its

judgment that on a careful consideration of the evidence it has
come to this or that conclusion. The material evidence on a
particular issue for and against the parties to the suit must be
set out in the judgment and reasons stated for its acceptance
or rejection.
A court not only to state the points for determination and the
decision thereon but also to give reasons for such a decision.

Where the judgment is extremely brief and unintelligible it is

invalid. Judgment of a Court of Small Causes need contain only
the points for determination and the decision thereon. But
where they are lacking the judgment is liable to be set aside.

Where the judgment in a small cause court suit is not

supported by the evidence as recorded and the evidence has
not been recorded in such a way as to enable the High Court to
form any opinion as to the respective cases of the parties
before the court and what material circumstances the court has
relied upon in support of the judgment, the judgment is liable to
be set aside in revision.

Except where both the parties are represented by pleaders the

court shall, when it pronounces its judgment in a case subject
to appeal, inform the parties present in court as to the court to
which an appeal lies and the period of limitation for the filing of
such appeal and place on record the information so given to the
parties.

The last paragraph of the judgment shall state in precise terms

the relief which has been granted by such judgment.

CrPC P a g e 247 | 249

Every endeavour shall be made to ensure that the decree is
drawn up as expeditiously as possible and in any case, within
fifteen days from the date on which the judgment is
pronounced but where the decree is not drawn up within the
time aforesaid, the court shall, if requested so to do by a party
desirous of appealing against the decree, certify that the
decree has not been drawn up and indicate in the certificate
the reasons for the delay, and thereupon-
a. an appeal may be preferred against the decree without
filing a copy of the decree and in such a case the last
paragraph of the judgment shall, for the purposes of rule 1
of the Order XLI, be treated as the decree.
b. so long as the decree is not drawn up, the last paragraph
of the judgment shall be deemed to be the decree for the
purpose of execution and the party interested shall be
entitled to apply for a copy of that paragraph only without
being required to apply for a copy of the whole of the
judgment, but as soon as a decree is drawn up, the last
paragraph of the judgment shall cease to have the effect
of a decree for the purpose of execution or for any other
purpose.
Preparation of decree:
1. Every endeavour shall be made to ensure that the decree
is drawn up as expeditiously by as possible and in any
case, within fifteen days from the date on which the
judgment is pronounced.
2. An appeal may be preferred against the decree without
filing a copy of the decree and in such a case the copy
made available to the party by the Court shall for the
purposes of Rule 1 of Order XLI be treated as the decree.
But as soon as the decree is drawn, the judgment shall
cease to have the effect of a decree for the purposes of
execution or for any other purpose.
Copies of judgment when to be available. [12] Where the
judgment is pronounced, copies of the judgment shall be made
available to the parties immediately after the pronouncement

CrPC P a g e 248 | 249

of the judgment for preferring on appeal on payment of such
charges as may be specified in the rule made by the High
Court.

Judgment in rem:
A judgment in suit under Section 92. C.P.C has conclusive effect
as against the entire world, either as a judgment in rem or, in
the alternative, by treating the whole world as a party to the
suit. A suit under Section 92 C.P.C. can be maintained only in
respect of a public trust of a permanent character and the
judgment in such, a suit would be judgment in rem and not a
judgment in personam.

If nobody raises any objection in a suit with regard to the public

or permanent nature of trust, then after the decision given by
the District Judge holding the property to be a public trust and
laying down a scheme for its administration it is not open to
any party to challenge the permanent nature of the trust. [13]

Where there is a public trust and the District Judge has

appointed a person as trustee in suit brought against the then
trustee, it is not open to a third party to claim that the District
Judge should not have appointed the person so appointed by
him but should have appointed some others who had a better
claim. To that extent a decree under Section 92 C.P.C. is binding
not only on those who are parties to the suit but also others.

CrPC P a g e 249 | 249