Cr. P. C.

, 1973

Notes on
Unit-II
By Dr. N. K. Bahl
 L- 2.11 Arrest

Steps for appearance of accused before the court:-

After filing of a complaint and taking evidence u/s 200 and
202 Cr.P.C. or after receiving a police report u/s 173 Cr.P.C. and
after perusal of case diary, the Magistrate may issue process for
the appearance of accused to attend the trial before the court.
Mainly there are five methods to compel the presence of the
accused before the court for trial, i.e., by issue of summons, by
arrest on B.W. or N.B.W. or by issuing warrant u/s 82 or 83
Cr.P.C. (subject to bail)
On the receipt of charge sheet, or after taking evidence u/s
200 and 202 Cr.P.C., Magistrate may issue process u/s 204 Cr.P.C.
for appearance of accused in any of the following ways:-
 (i) summons
(ii) bailable warrants
(iii) non-bailable warrants.
(iv) By proclamation in the news paper for person
absconding (82)- if not arrested
(V) By attachment of property of the absconding
accused (83)
(VI) By taking a bond for appearance, if accused is
present in court. (88)*
• The word arrest is not defined in Cr.P.C.
• Arrest means to seize someone by legal authority
and take him into custody.
• Arrest means deprivation of a person of his liberty by
some legal authority. If a person suppresses or
overpowers the voluntary action of another and detains
him in a particular place or compels him to go in a
specific direction, he is said to imprison that other
person. If such detention or imprisonment is in
pursuance of any legal authority, it would amount to
arrest.
• Law is quite jealous of personal liberty as given in A.
21, COI, Thus, arrest and bail has special significance.
• Arrest how made:- Section 46
(1) In making an arrest the police officer or other
person making the same shall actually touch or
confine the body of the person to be arrested,
unless there be a submission to the custody by
words or action:
An oral declaration of arrest without actual contact or
submission to custody will not amount to an arrest.
“You are under arrest” in filmy style is not an arrest
in legal parlance. Actually touching the body or
confining the body is essential for arrest, unless
accused makes a submission to the custody by words
or action. (hands up)
• Arrest of a female:-
• where a woman is to be arrested, unless the
circumstances indicate to the contrary, her submission
to custody on an oral intimation of arrest shall be
presumed and, unless the circumstances otherwise
require or unless the police officer is a female, the
male police officer shall not touch the person of
the woman for making her arrest.
• 46 (2) If such person forcibly resists the endeavour
to arrest him, or attempts to evade the arrest, such
police officer or other person may use all means
necessary to effect the arrest.
• (3) But this section does not give a right to cause the
death of a person who is not accused of an offence
punishable with death or with imprisonment for
life. (encounter)
• Timings of arrest of a female
• 46 (4) Save in exceptional circumstances, no woman
shall be arrested after sunset and before sunrise,
and where such exceptional circumstances exist, (for
making arrest after sunset and before sunrise) the
woman police officer shall, by making a written report,
obtain the prior permission of the Judicial
Magistrate of the first class within whose local
jurisdiction the offence is committed or the arrest is to
be made. (+ by Cr.P.C., AA Act, 2005)
• When police may arrest without warrant
• Arrest by the police without warrant is also a method to
produce the accused before the court for trial. Police officers
are authorized to arrest without warrant an accused who has
committed a cognizable offence (S.41).
• The police officer has also power to arrest a person on his
refusal to give his name and address if he has committed a
non-cognizable offence in his presence (S.42).
• Arrest by private persons
• Private persons are also authorized to arrest any person, who in
his presence commits a non-bailable and cognizable offence
(S.43).
• Arrest by Magistrate
• Magistrate himself may arrest the offender without warrant u/s
44 Cr.P.C., if offence is committed in his presence.
• (i) Search of a place where accused is suspected to be hiding
(47)
• (ii) Pursuit of offender in India :- A police officer may, for the
purpose of arresting an accused without warrant, pursue and
arrest such accused person into any place in India. (48)
• If arrest is to be made under warrant issued by a court, it can
be executed at any place in India. (77)
• (iii) Subordinate can be deputed for arrest:- If a senior
police officer in his presence authorises his junior to arrest an
accused who may be lawfully arrested without warrant, such
subordinate is duty bound to arrest. (55)
• But if senior wants to send and depute his subordinate for
arresting a person without a warrant, he shall give an order in
writing to his subordinate specifying the person to be arrested
and the offence for which arrest is to be made.(55)
• (iv) Re-arrest:- if an accused escapes from lawful
custody, he can be re-arrested at any place in
India. (60(1)
• After arrest procedure:-
• (i) Search of arrested person (51)
• (ii) Seizure of offensive weapons (52)
• (iii) Medical examination of arrested person at the
request of I.O. (53 & 53-A)
• (iv) Report of arrest to be sent to D.M. (58)
• (v) Arrested person not to be released except on
bail by the police or by the competent court. (59)
 When police can arrest without warrant?
• A person may be arrested without warrant if
he is suspected to have committed a cognizable
offence. (41)
• Even in non-cognizable offences, if committed
in the presence of a police officer can be
arrested, if he refuses to give his name and
address, or gives a false name and address so
that his name and address may be ascertained.
• After ascertaining his name and address, he
shall be released on bail
• When police may arrest without warrant (41)
• Any police officer may arrest without an order from a
Magistrate and without a warrant arrest any person in
following circumstances:-
• (a) if he has been concerned in any cognizable offence,
or against whom a reasonable complaint has been made
or credible information has been received or reasonable
suspicion exists that he is involved in an cognizable
offence.
• (b) who has in his possession, without lawful excuse, any
implement of house breaking.
• (c) Who has been proclaimed as an offender under
Cr.P.C., or by order of state Govt.
• (d) in whose possession suspected stolen property is
found.
• (e) who obstructs any police officer while in execution
of his duties or who has escaped, or attempts to escape,
from lawful custody.
• (f) who is reasonably suspected of being a deserter
from any of the armed forces of the union.
• (g) who has committed an offence out of India, which
if committed in India, would have been punishable as
an offence, and for which, he is under law of
extradition, liable to be detained.
• (h) who, being a released convict, commits breach of
any rule
• (i) for whose arrest any requisition, whether written or
oral, has been received from another police officer by
letter or telephone or wireless.(requisition should
contain name of the accused and the offence or other
cause for which arrest is to be made)
• (j) if he is taking precautions to conceal his presence
with a view to committing a cognizable offence.(109)
—only by officer in charge of PS
• (k) if he is an habitual offender u/s 110 Cr.P.C.—only
by officer in charge of PS
• (l) if he refuses to give his name and address or gives a
false name and address on commission of a non-
cognizable offence in presence of police officer.(42)
• Arrest by a private person without warrant:- (43)
• When a cognizable and non-bailable offence is
committed in the presence of several private citizens
and no police officer is anywhere available near the
scene of offence, the exigency of situation permits
private citizens to arrest such an accused person
without warrant. Private citizen will hand over such
an arrested person to police officer/cause him to be
taken in custody to the nearest police station.(43)
• Any proclaimed offender can also be arrested by a
private person without warrant. (43)
• If such person comes u/s 41, police officer shall re-
arrest him.
• Arrest by Magistrate:- (44)
• (i) Executive and judicial Magistrates are responsible
officers with a detached out look, they are given wide
powers of arrest, if any offence, irrespective of its
nature/seriousness is committed in the presence of
such a Magistrate, within their local jurisdiction.
Arrested person may be released on bail/sent to jail.
• (ii) Even if no such offence is committed in the
presence of Magistrate, but if the Magistrate is
competent to issue a warrant of arrest against such
person, and such person is present before him,
within his local jurisdiction, he can arrest such
person.(44)
 Lecture- 2.12 Rights of arrested persons
(male and female)

• Powers of arrest are subject to certain restrictions in the

interest of arrested person as well as in the interest of society
at large. These restrictions are the recognition of rights of
the accused person. These rights are:-
• 1. Right to know the grounds of arrest :-
• (a) Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full
particulars of offence for which he is arrested or other
grounds of arrest. (S. 50 & A, 22(1) COI)
• (b) If arrest is made under a warrant, arresting officer
shall notify the substance of allegations to arrested person,
and if so required, shall show him the warrant (75)
• Reason: so that he may move for bail/habeas corpus for
safeguarding his personal liberty and consulting his
legal practitioner of his choice.
• 1.A. Right to inform one friend, relative or other
interested person of arrestee that he has been arrested
and where he is being detained. (Joginder Singh v.
State of U.P., (1994) 2 Crimes 106 (SC)
2. Right to be defended by counsel of his choice
(S. 303 & A. 22(1) COI
• 3. Right to be informed regarding right to be released
on bail in bailable offences and that he may arrange
sureties. (50(2)
• 4. Arrested person to be taken before a Magistrate or
S.H.O.—If a person is arrested with or without warrant by
a police officer/any person, he shall without unnecessary
delay, and subject to provisions of bail, send the arrested
person before a Magistrate having jurisdiction or before
officer in charge of police station.(56 & 76)
• 5. Arrested person not to be detained more than 24 hours
without judicial scrutiny:-No police officer shall detain in
his custody, a person arrested with or without warrant, for
a longer period than 24 hours (excluding the time necessary
for the journey from the place of arrest to the court of
Magistrate) unless remand order u/s 167 Cr.P.C., is passed
by the Magistrate authorising his further detention in police
custody or judicial custody (jail). (57 and A. 22(2)
• 6. Medical examination of arrested person at the
request of arrested person:- if examination of his
body will afford evidence which will disprove the
commission of offence by him, or which will
establish the commission of offence by any other
person against his body, the Magistrate may, if
requested by the arrested person so to do direct the
examination of the body of arrested person by a
registered medical practitioner.
• A copy of the examination report shall be furnished
by RMP to arrested person or his nominee free of
costs.(54)
• 7. Freedom from handcuffing after arrest – unless
permission is granted by the court. (Justice V.R. Krishna
Iyer in Prem Shanker Shukla v. Delhi Ad., AIR 1990 SC
630
• 8. No bar fetters :-under trial is in custody but not under
going punitive punishment. Bar fetters are violative of
human dignity, within or without prisons. (Sunil Batra v.
Delhi Ad., AIR 1978 sc 1535)
• 9. Right against torture and cruel treatment :-No use
of third degree/no beating. It is violative of right to life.
• 10. Right of food, shelter and clothing
• 11. Right to education (A. 21-A)
• 12. Right to health (Doctor at jail Hospital)
• 13. Right to speedy trial:- (A.21)—Hussainara Khatun v.
State of Bihar, AIR 1979 SC 1369—At all the three stages,
I.I.T.
• 14. No application of ex-post facto laws :- (after the fact)
No person shall be convicted of any offence except for
violation of a law in force at the time of the commission of
the act charged as an offence, nor he will be subjected to a
penalty greater than that which might have been inflicted
under the law in force at the time of the commission of
offence. (A. 20(1)—New rules or enhanced punishment will
not be applicable to crimes committed before the new law
was adopted.
• 15. No double jeopardy:- No person shall be prosecuted and
punished for the same offence more than once. (A. 20 (2)
• 16. Right against self incrimination:- No
person accused of any offence shall be
compelled to be a witness against himself.
(A.20(3)—(cf. DNA test, sample of voice,
nails hairs, finger prints)
• 17. Right of protection of life and personal
liberty :- No person shall be deprived of his
life or personal liberty except according to
procedure established by law
 Additional rights of arrested females

• 1. Female accused to be arrested by a female

police officer only.
• 2. No arrest after sun set and before sun rise,
unless permitted by the Magistrate.
• 3. Medical examination of a female should be
done by or under supervision of a female
medical practitioner. (53(2)
• 4. Right to privacy (A. 21)
• 5. Right to carry small child with her
 Exercise
What to do if a court has issued N.B.W. ?
In the court of ACJM, Kasia, State of UP v. SPS
Crime No. 745 of 1994 u/s 323, 353 IPC P.S. Kasia
Offence – Assault or use of criminal force to deter a public
servant from discharge of his duties
Offence is punishable with imprisonment for 2 years of fine
or both.
Offence is cognizable, non-bailable and triable by any
Magistrate
Offence made non-bailable by Cr.P.C., AA 2005
Now NBW is issued by ACJM, Kasia (u/s 89 Cr.P.C.)
Advise the accused.
 (i) If the accused was on bail
1. He can apply for cancellation of warrant (70(2)
2. He can apply for fresh bail if, original order of bail is
not cancelled
Action be taken by the court:-
A) Get him arrested and send him to judicial custody
i.e., Jail
B) Cancel his NBW
C) Issue show cause notice to his sureties u/s 446
D) Forfeit his personal bond and bail bonds of the
sureties and recover the amount of P.B., and B.B. in full
or partially. Court has power to reduce the penalty.
 (ii) If the accused was not on bail
• 1. He will have to surrender before the court,
Because bail presupposes custody (437)
• 2. He will be arrested by the police and
produced before the court for remand to jail.
• 3. He will apply for bail
• 4. Now Police has no power to take bail
since charge sheet has been filed in the court.
• 5. Now provision of anticipatory bail is also
not applicable (438)
 Lecture 2.13-- Remand and Bail
• Whenever an accused person is arrested and detained
by the police during investigation and it appears that
the investigation cannot be completed within 24
hours as fixed by S. 57, and there are grounds for
believing that accusation or information is well
founded, the accused person has to be forwarded to
the nearest judicial Magistrate for remand along with
copies of C.D. and G.D. (S.167). The Magistrate to
whom the accused was so forwarded may from time
to time authorized the detention of the accused either
in police custody or in judicial custody (remand).
• Christian Michel who was extradited from
UAE was given 5 days CBI remand initially
(=police custody remand)
• Magistrate of II class can not grant Police
custody remand, unless authorized by the High
Court.
• Maximum police remand of first 15 days can be granted. If
further detention of the accused is necessary for the purpose
of investigation, the police may ask for further remand and
the Magistrate may grant further judicial remand for a period
of maximum 15 days again but the total period of detention
shall not exceed
• (i) 90 days, if the offence is punishable with death or L.I. or
for a term not less than 10 years
• (ii) 60 days in offences punishable with a term of less than
10 years
• On the expiry of this period of 90/ 60 days the accused
persons shall be released on bail, if he is prepared to furnish
bail. This bail is equivalent to bail under chapter 33 of
Cr.P.C. ( default bail)
• Offence of extortion u/s 386 is punishable with
imprisonment which may extend to ten years. This
can not be equated with imprisonment of ten years or
more.???
• Rajeev Chaudhary . State (NCT) of Delhi, AIR 2001
SC 2369
• Executive Magistrate is also empowered to grant
remand for 7 days where Judicial Magistrate is not
available. Executive Magistrate/MM should have been
conferred power to grant remand by the High Court.
After 7 days, accused will be produced before judicial
Magistrate from the jail. Judicial Magistrate can
authorize further detention of the accused up to a total
period of 90/60 days.
• Order of stopping investigation beyond six months
in Summons cases triable by Magistrate :- in
summons cases, if the investigation is not completed
in six months from the date of arrest of accused, the
Magistrate shall make an order stopping further
investigation into offence, unless I.O. satisfies the
Magistrate that for special reasons and in the interest
of justice, continuation of investigation beyond six
months is necessary.
• Sessions judge can reverse above order in his revision
jurisdiction.
 Provisions for Bail in Cr. P. C.

• The idea behind the arrest and detention of the

accused persons is to secure his attendance at
the time of trial and to ensure that if he is
found guilty he is available to receive the
sentence. If his presence can be procured
before the court otherwise than by arrest and
detention then the concept of personal liberty
(A.21) demands that the person should be
released on bail.
• Word ‘Bail’ is nowhere defined in the Cr.P.C. Bail is to procure
the release of a person from legal custody with an undertaking
that he shall appear at the time and place designated and
submit himself to the jurisdiction and judgment of the court.
• When a person is accused of a serious crime and is likely to
be convicted and punished for such a crime and chances are
that he will abscond or jump bail; if such person is arrested, it
is not desirable to grant him bail and restore his liberty.
Similarly, if the arrested person, if released on bail, is likely to
temper with the prosecution witnesses and obstruct in the
conduct of the trial, or is likely to commit more offences
during the period of his release on bail, it would be improper to
release such person on bail. On the other hand, where there are
no such risks involved, the person should be released on bail.
• “The bail and not the jail” should be the rule because
accused is presumed to be innocent unless and until
proved guilty hence it would be unjust to keep him in
jail before his guilt is proved. The law of bail, truly
speaking, has to balance out between individual liberty
of the accused and the liberty of the society, in the
sense of its protection.
• The Cr.P.C. has classified all offences into bailable
and non-bailable, as per schedule attached to it. An
analysis of the schedule shows that all serious offences,
i.e., offences punishable with imprisonment for three
years or more have been classified as non-bailable
though there are exceptions to this rule. (Part IInd of
schedule)
• If a person accused of bailable offence is
arrested or detained without warrant, he has
the right to be released on bail but if the
offence is non-bailable then it does not mean
that the person accused of such offence shall
not to be released on bail. In such cases bail is
not a matter of right but a matter of discretion
only.
• Bail in Bailable offence: - S.436 Cr.P.C. says that
when any person who has committed a bailable
offence is arrested or detained without warrant by the
police or appears or is brought before a court, such a
person shall be released on bail. This bail may be
granted by the police officer at the police station or by
the Magistrate in the court.
• Such person is generally required to give his personal
bond and produce bail bond of 2 or more sureties to
the satisfaction of police officer or the court, but such
a person may be released on his executing a personal
bond without sureties bonds also. Police or the court
has no option but to grant the bail in bailable offence.
• It may be recalled that u/s 50 (2) it is
mandatory for a police officer to inform the
accused of his right of bail as soon as he is
arrested in a bailable offence and that he may
arrange for sureties on his behalf. If the
accused person is ready to give bail, the police
or court is bound to release him.
• D. K. Basu v. State of W.B., 1997 (1) SCC 416
• Right of Indigent person to be released on bail in
bailable offences:-
• Section 436 Explanation:- where a person is unable
to give bail bonds within a week of the date of his
arrest, it shall be sufficient ground for the court to
presume that he is an indigent person.
• The Police officer or the court may release any
person on his personal bond without bail bonds of
sureties.
• But if the accused person is an indigent person, he
shall be released on his personal bond without
sureties bonds. (+ Cr. P. C., AA 2005 w.e.f.,23-6-
2006)
• Bail is not a right on subsequent occasion in
the same case even in bailable offences
• S.436 (2) makes it clear a provision to the effect
that a person who absconds or has broken the
condition of his bail bond when he was released
on bail in bailable cases on a previous occasion,
he shall not be entitled to bail when brought to
the court on any subsequent date even though the
offence is bailable. Meaning thereby, that the
court may refuse to release him on bail if he has
failed to comply with the conditions of the bail-
bond as regards the time and place of attendance.
• Cancellation of bail in bailable offences
• But if the person released on bail in bailable
offence indulges in acts which are against the
concept of fair trial, the High Court or Court of
Session may cancel his bail and commit him to
custody (S.439 (2).
• The court which had granted bail to the
accused has no right to cancel the same since
there is no provision for cancellation in section
436 Cr.P.C., parallel to 437 (5).
• Hussainara Khatoon v. Home Secretary, State of
Bihar, AIR 1979 SC 1369
• Bail when accused is in jail for a period up to half of
the maximum period of imprisonment specified for
that offence under law.
• 436-A Maximum period for which an under trial
prisoner can be detained?
• Where an accused has during investigation, inquiry or
trial (I.I.T.) undergone detention for a period
extending up to one-half of the maximum
punishment specified for the offence, he may be
released on his P.B., with or without sureties.
• The Court has discretion to order his continued
detention longer than one-half of the said
period or release him on bail instead of P.B.
with or without sureties.
• S. 436-A is not applicable to offences in which
death penalty is one of the punishment.
• S. 436-A was added by Cr.P.C., AA Act 2005 w.e.f.,
23-6-2006.
• Bail or release if full sentence is undergone:-
• No such person shall in any case be detained during
the period of I.I.T. for more than the maximum
period of imprisonment provided for the said offence
under that law.
• But period of detention passed due to delay in
proceedings caused by the accused shall be excluded
from above counting.
• LCR has recommended that this period of ½ should
be reduced to 1/3for his release.
• Release of accused if he has undergone maximum
sentence fixed by law. (436-A, II proviso)
• No accused shall be detained during IIT for more than
the maximum period of imprisonment provided for the
said offence.
• Explanation:- In computing the period of detention
u/s 436-A, for granting bail, the period of detention
passed in jail due to delay in proceedings caused by
the accused shall be excluded.(eg., he fails to file
B.B. in spite of bail order or takes frequent
adjournments on hearing of his bail application.)
• Whether 436-A is applicable to bailable or non-
bailable offences? Yes to both.
 Lecture 2.14- Bail in Non-Bailable Offences
• S.437 Cr.P.C. provides for bail at the
discretion of the court in non-bailable
offences. In non-bailable offences, bail can
only be granted at the discretion of the court.
This discretion to grant or not to grant the bail
depends upon the gravity of the crime, the
likelihood of absconding the accused etc. This
discretion is not arbitrary but a judicial one.
• The judicial discretion in granting or refusing bail has
to be applied keeping in mind the enormity of the
charge, nature of accusation, severity of punishment,
nature of evidence, danger of witnesses being
tampered with, opportunity of the applicant for
preparation of his defence, risk of his death, age and
sex. The previous conviction and criminal record of
the accused person and the likelihood of the repetition
of the offence by the accused person if released on
bail, are also be taken into account while deciding the
question of bail.
• Power of Magistrate to grant bail in non-bailable
offences:- when any person accused of, or suspected
of commission of any non-bailable offence is arrested or
detained without warrant by officer-in-charge of police
station or appears or is brought before a court (other
than High Court or court of sessions-see section 439),
he may be released on bail at the discretion of the court.
Restriction No. 1 :- Accused shall not be released on
bail, if there there appears reasonable grounds for
believing that the accused has been guilty of an offence
punishable with death or L.I.
Restriction No. 2 :- Accused shall not be so released on
bail, if such offence is a cognizable one and accused has
been previously convicted of an offence punishable
with death/L.I./seven years or more.
• Restriction No. 3 :- Accused shall not be so released
on bail, if such offence is a cognizable one and accused
has been previously convicted on two or more
occasions of a cognizable offence punishable with
imprisonment from 3 to 7 years.
• Exception No 1 :- In spite of above 3 restrictions
Court may release such accused on bail if such person
is under age of 16 years or is a woman or a sick or
infirm person.
• Exception No 2 :- Court has discretion to grant bail to
accused person in spite of criminal history of
accused, if court is satisfied that it is just and proper so
to do for any special reason in the interest of justice.
• A specific negative direction is given by law u/s
437 (1) third proviso in the matter of bail. The mere
fact that an accused person may be required for
being identified by witness during investigation
shall not be sufficient ground for refusing to grant
bail if he is otherwise entitled to be released on
bail.
• Bail u/s 437 (2)- If at any stage of IIT, it appears to
the court that there are not reasonable grounds for
believing that accused has committed non-bailable
offence, but there are sufficient grounds for further
inquiry into his guilt, he can be released on bail.
• Bail provisions were made more stringent by the
Amendment Act of 1980 in Cr.P.C. Accused shall not be
released on bail if there appears reasonable grounds for
believing that he has been guilty of an offence punishable
with death or life imprisonment (S.437 (1) (i). S.437 (1)
was substituted by 1980 Amendment Act and it was
provided that the accused shall not be released on bail if
his offence is cognizable one and he had been previously
convicted of an offence punishable with death,
imprisonment for life or for a term of 7 years or more. He
shall also be not released on bail if he had been previously
convicted on two or more occasions of a cognizable
offence punishable with imprisonment for three years or
more but not less than 7 years. (Cr. P. C. Amendment Act,
2005).
• The police officer or the court releasing any person
on bail in case of non-bailable offence has to record
in writing his reasons or special reasons for doing so
(S.437 (4).
• S.437 (1) clearly says that the Magistrate or
Police officer in cases of offences punishable with
death or imprisonment for life shall not grant bail.
However, the court may direct that any person under
age of 16 years or any woman or any sick or infirm
person accused of any such offence be released on
bail.
• (First proviso of S.437 (1). Hence, except in cases
of children, woman and sick or infirm person, the
discretion to grant bail has been taken away from
the Magistrate and police officer in cases of non-
bailable offences punishable with death or
imprisonment for life.
• The basis of this rule is that the graver the
offences greater will be the chances of absconding;
hence, there should be no bail. However, High
Court or Court of Sessions may grant bail even in
offence punishable with death or life
imprisonment.
• Bail with conditions
• Bail may also be granted subject to certain
conditions. This is a balance between grant of bail
and not granting it. S.437 (3) provides that when a
person is accused or suspected of the commission of
an offence punishable with imprisonment which may
extend up to 7 years or more or of an offence under
chapter VI (offences against the state), chapter XVI
(offences against human body) or chapter XVII
(offences against property) of I.P.C. or abetment or
conspiracy or attempt to commit any such offence, is
released on bail u/s 437 (1) the Court shall impose
following conditions: -
 1. that such person shall attend the court in accordance
with the conditions of the bond executed; or
2. that such person shall not commit an offence similar to the
offence of which he is accused, or suspected; or
3. that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing such
facts to the Court or to any police officer or tamper with the
evidence,
and may also impose, in the interest of justice, such other
conditions like surrender of passport, not leaving the country
without permission of the court, as it considers necessary.
• This power to impose conditions has been given only to
the court and not to police officers. Any such bail granted
u/s 437(1), (2), may be cancelled and the person be
arrested and committed to the custody (S.437 (5) and
(S.439 (2). This power of cancellation is given
exclusively to the court and not to police officers.
• S.439 Cr.P.C. gives very wide powers and discretion to
the High Court and Court of Sessions in the matter of
granting bail. Their discretion u/s 439 is not restricted by
the restriction contained in S. 437. S.439 (1) says that the
High Court or a Court of Sessions may release a person on
bail even if the offence is of the nature specified in S.437
(3) and may impose any condition which they think
necessary.
 Bail on the ground of delay in trial
• In a case triable by Magistrate, if the trial of a non-bailable
offence is not concluded within a period of sixty days from the
first date fixed for taking prosecution evidence, and the accused
is through out in jail during whole of the said period, he shall
be released on bail, unless for the reasons, to be recorded, the
Magistrate otherwise directs. (437 (6)
• Bail at the conclusion of the trial:- At any time after
conclusion of the trial of a person accused of non-bailable
offence, and before delivery of judgment, court is of the
opinion that there are reasonable grounds for believing that the
accused is not guilty of such offence, accused shall be released
on executing his personal bond without sureties for his
appearance to hear the delivery of judgment. (437(7) E.g., if all
witnesses have turned hostile and there is no reliable evidence
against the accused.
 Advance bail:-
Bail to require accused to appear before next appellate
court :-
Section 437-A added by Cr.P.C., AA 2008 w.e.f., 31-12-09.
• Before conclusion of the trial and before disposal of appeal,
the trial court or the appellate court as the case may be,
shall require the accused to execute bail bonds with
sureties, to appear before higher court as and when such
court issues notice in respect of any appeal or petition filed
against the judgment of the respective court and such bail
bonds shall remain in force for six months.
• If accused fails to appear before higher court, the bond will
stand forfeited and procedure u/s 446 Cr.P.C., will apply.
• No arrest, No remand, No jail, Hence no bail
• Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
(D.O.J., 2-7-2014) held by the Supreme Court that if the
offence is punishable with imprisonment upto 7 years,
no arrest can be made by the Police without issuing a
notice to the accused. If the accused complies with the
notice and co-operates in the investigation, he will not be
arrested.
• The I.O. has to satisfy himself if the arrest is inevitable
and this will be scrutinised by the Magistrate.
No remand to jail : consequently, if offence is
punishable with imprisonment upto 7 years, since arrest is
not to be made, there is no need of remand. Hence
Magistrate will not grant remand in such cases.
• 489-A I.P.C.- maximum punishment is 3 years
• ¾ D.P. Act---maximum punishment is 2 years and fine.
• Delay in hearing of bail application on account of Bail
Notice causes violation of FRs of the accused.
• Rule 18(3)(a) of Allahabad High Court Rules
(criminal) says that “ barring exceptional
circumstances, no order granting bail shall be made on
an application unless notice thereof has been given to
the Govt Advocate and not less than 10 days have
elapsed between the giving of such notice and hearing
of such application.
• Now this period of bail notice of 10 days has been
reduced to 2 days. (TOI, dated 25-9-18 page 3)
 Cancellation of bail
The Magistrate who granted bail cannot cancel bail
in bailable offences u/s 436. He can refuse bail if on
any subsequent occasion in the same case accused is
brought before him on his failure to comply with the
conditions of the bail bond as regard time and place of
attendance (S.89).
But no express powers of cancellation like S.437 (5)
have been given u/s 436.
According to S.437 (5), any court, which has released
a person on bail, may, if it considers necessary to do
so, direct that such person be arrested and commit him
to custody after cancellation of his bail.
 This power to cancel bail has been given to
the court and not to the police officers.
Secondly, the court, which has granted the bail,
can alone cancel it or higher court can cancel it.
A court of Magistrate cannot cancel the bail
granted by a police officer. For cancellation of
bail in such a situation, it is only the High Court
or Court of Sessions u/s 439, who is empowered
to cancel the bail.
 S.437 (5) gives power and discretion to cancel the bail. It
does not lay down any guidelines as to when and how the
discretion is to be utilized. Bail can be cancelled if the accused
on bail commits the same offence for which he is being tried or
if the accused forcibly prevents the search of place under his
control or if he tampers with prosecution witnesses or if he runs
away to a foreign country or absconds.
Cancellation of bail by higher courts:-
• The HC and Court of Sessions may direct u/s 439 (2) that
any person who has been released on bail, his bail be cancelled
and he be arrested and committed to custody. These powers of
cancellation given to these higher courts are quite wide. Whether
the offence was bailable or non-bailable is immaterial; whether
police officer or a court granted the bail is also immaterial.
 Special powers of High Court and Court of sessions
regarding bail (Section 439 Cr.P.C.,)
• High Court or court of sessions may direct that
any person accused of any offence who is in
custody, be released on bail after hearing the
counsel for accused and public prosecutor.
• Such a court can impose conditions while
releasing him on bail if the offence is of the
nature specified in S. 437(3).
• Cancellation of Bail:- Such a court can cancel
the bail of any accused person who has been
granted bail under chapter 33
• Notice to Public Prosecutor:- High Court or court of
sessions shall, before granting to a person who is
accused of an offence which is exclusively triable by
court of sessions or is punishable with L.I., give
notice of the bail application to PP, unless for reasons
to be recorded in writing, court is of the opinion that
giving of notice is not practicable.
• But if offence is punishable u/s 376 (3),376 AB, 376
DA, 376 DB of IPC, giving of notice to PP within 15
days of filing of bail application is compulsory and in
all such cases, the presence of informant (who
lodged FIR) shall be compulsory.
• + by Criminal law AA, 2018, w.e.f., 21-4-2018
 Lecture 2.15- Anticipatory Bail (A.B.)
• S.438 Cr.P.C. empowers the High Court and Court of
Sessions to issue direction for grant of bail to the person
apprehending arrest. AB is a bail in anticipation of being
arrested. S.438 Cr.P.C. was omitted in U.P. S.438 was not
present in the old Cr. P.C. of 1898. It was introduced on the
recommendations of 41st Law Commission Report. The
necessity to grant AB arose mainly because sometimes
influential persons try to implicate their rivals in false cases
for the purpose of disgracing and harassing them by keeping
them in jail for some days. On the other hand, when a person
accused of an offence is not likely to abscond, or otherwise
misuse his liberty while on bail, there seems no justification
to require him first to go into jail and then apply for bail. For
such category of persons S.438 was introduced in 1973 in the
Bail presupposes custody—A.B. is an exception
S.438 provides that when a person has reason to believe
that he may be arrested on accusation of having committed a
non-bailable offence, he may apply to the High Court or Court
of Sessions for a direction under this section and the court may
issue direction that in the event of such arrest he shall be
released on bail.
The Equation: Non-bailable offence + order of A.B. =
bailable offence
Factors to be taken in consideration while deciding an
application for A.B. :-
1. the nature and gravity of offence.
2. previous conviction of the accused, if any.
3. the possibility of the applicant to flee from justice
• 4. whether the accusation has been made with the
object of injuring or humiliating the applicant by
getting him arrested.
• Interim A.B. :-
– After considering above factors, the application of AB may
either be rejected forthwith or court may issue an interim
order for grant of AB
– If AB is rejected, or if interim order is not granted, police
can arrest the accused without warrant.
– After grant of interim order, a notice along with copy of the
order shall be issued to Public prosecutor and S.P., (being
not less than 7 days notice) for reasonable opportunity of
being heard for final hearing on AB application.
• Presence of the accused:- The presence of the applicant
seeking AB shall be mandatory at the time of final hearing
and passing of order on AB., if on the application of PP, the
court considers such presence necessary in the interest of
justice. (+ Cr.P.C.,AA, 2005 w.e.f., 23-6-2006)
• Accused to be taken in custody, if AB is rejected.
• Conditions which may be imposed in AB order:- following
conditions may be imposed:-
• 1. that the person shall make himself available for
interrogation by a police officer as and when required.
• 2. a condition that the person shall not, directly or indirectly,
shall make any inducement, threat or promise to any witness
so as to dissuade him from disclosing such facts to the court
or police officer.
• 3. that the person shall not leave India without previous
permission of the court.
• 4. such other conditions as may imposed u/s 437 (3).
• What is the effect of an order of AB ?
• (i) If a person is granted AB, and such person is thereafter
arrested without warrant by the police on same accusation
and he is prepared at the time of arrest or at any time in the
custody of police to give bail, he shall be released on bail
by the police. (keep the certified copy of the order of AB
like Aadhar Card in your pocket)
• (ii) Magistrate taking cognizance of such offence shall issue
only bailable warrant inconformity with the direction of
the High Court or the sessions court as the case may be in
the first instance.
• N.B.:- The order of AB makes the offence from
non-bailable to bailable
• Non-bailable offence + AB order = Bailable
• No AB if the person is accused of offences u/s 376
(3), 376AB, 376DA, 376DB of IPC.
• + by Criminal law AA, 2018 w.e.f., 21-4-2018
• 376(3) IPC- Rape on a woman under 16 years of
age (20 years to L.I., which means remainder of
accused’s natural life + fine)
• 376AB, IPC- Rape on a woman under 12 years of
age (20 years to L.I., which means remainder of
accused’s natural life + fine) or with death
• 376 DA, IPC – Gang rape on a woman under
16 years of age (L.I., which means remainder
of accused’s natural life + fine)
• 376DB, IPC - Gang rape on a woman under
12 years of age (L.I., which means remainder
of accused’s natural life + fine) or with death.
• No AB if accused is arrested/is in jail/police
custody.
• No AB if a person is accused of an offence
under SC & ST (Prevention of Atrocities)
Act, 1989. This Act was amended in 2018.
 Anticipatory bail….cont.
• Keeping in view the misuse of S/C and S/T (Prevention
of Atrocities) Act, 1989, Supreme Court of India has ruled
in Dr. Subhash Kashi Ram Mahajan V. State of Mahrashtra
& Another, AIR 2018 SC 1498
• that there will be no automatic arrest after the case is
registered under the said Act. Court noted that
harassment of an innocent citizen, irrespective of caste or
religion, is against the guarantee of COI, hence bench made
it compulsory for the DSP of police to conduct a
preliminary investigation, not exceeding a week, to
arrive at a decision whether FIR deserves to be registered
under parameters of the law. Thus, immediate automatic
arrest was done away.
• The accused is entitled to AB, despite of
express bar u/s 18 the said Act ,(denying pre
arrest bail) that AB shall not be available if
a person is charged with an offence under any
S/C, S/T Act.
• For arrest of public servants, permission of his
appointing authority will be a must, whereas
for others, written permission of SSP or DSP
will be necessary.
• SC said that steps should be taken to achieve the
constitutional goal of a “ caste-less” society and prevent
the misuse of law resulting in spreading hatred on caste
lines.
• SC also held that the judiciary should not remain a mute
spectator when law was being misused to frame
innocents in criminal cases and the court had to intervene
for protection of peoples liberty as presumption of
innocence was a human right. Arrest irrespective of
presumption of innocence appears to be draconian.
• Dr. Subhash Kashi Ram Mahajan V. State of Mahrashtra
& Another, AIR 2018 SC 1498 (DOJ- 20-3-18-JJ
U.U.Lalit & A.K. Goel)
• Complainant- Bhasker karbhari Gaidwad
• Later on Parliament adopted legislative route to
nullify the ratio decidendi of SC verdict in Dr.
Subhash Kashi Ram Mahajan’s case and amended
S/C, S/T (prevention of atrocities) Act, 1989 in
2018.
• Section 18-A was added which says that
“preliminary inquiry shall not be required for
registration of FIR against any person” and “the
investigation officer shall not require any approval
for the arrest, if necessary, of any person.”
• Now section 438 Cr.P.C., relating to AB shall not
apply to cases registered under S/C S/T Act.
 Power of review
• In Union of India v. State of Maharashtra (DOJ- 1-10-
2019)
• Power of review is unknown in criminal law for lower
courts. There is no such limitation on powers of the SC.
• UOI had sought review of directions number iii, iv and v of
judgment dated 20-3-2018
• SC has reviewed its judgment dated 20-3-2018 Dr. Subhash
Kashi Ram Mahajan V. State of Mahrashtra & Another
(DOJ- 20-3-18-JJ U.U.Lalit & A.K. Goel)
• and has reversed the dilution of S/C, S/T Act on review
application filed by central govt.
• JJ Arun Mishra, M.R. Shah and B.R. Gavai
admitted that court wrongly ventured into the
domain of legislature by framing the
guidelines and rejected the fear of misuse.
Direction number iii, iv, and v of judgment
dated 20-3-2019 recalled. Review allowed to
this extent.
• Direction number I and II relating to prior
permission before arrest not expressly set
aside. (but section 18-A has done it away)
• Also held that there is no provision of
preliminary inquiry either in S/C S/T Act or
Cr.P.C.
• Now ordinary procedure of registration of FIR,
investigation, arrest will be followed in cases
relating to atrocities on S/C and S/T.
• AB is granted only in non-bailable offences while
no such provision is made if the person is accused of
a bailable offence. The reason is that whenever a
bailable warrant is issued, it is endorsed with a
direction that the person shall not be arrested if he is
ready to give sureties to the extent of amount
mentioned in the bailable warrant itself. Truly
speaking, the grant of direction u/s 438 Cr.P.C.,
converts a non-bailable offence into bailable one,
since it gives direction to the police not to arrest such
person. No AB is available for unspecified offences.
• Where a person has reason to believe that he
may be arrested on accusation of having
committed a non-bailable offence, he may
apply before court of sessions or High Court
for a direction for AB that in event of his
arrest, he should be released on bail. The
moment an accusation is launched against a
person, the apprehension of arrest gets
crystallized and confirmed and there is an
occasion to apply for anticipatory bail u/s
438. AB can only be granted when the clouds
of charges are roaming around one’s head.
 • Anticipatory bail in U.P.
• State of U.P. had omitted/suspended Section 438 Cr.P.C.,
in U.P. vide U.P. Act No. 16 of 1976, w.e.f., 28 -11 -1975.
• What to do in U.P. in the absence of AB?
• Can an accused of UP go to Delhi and get AB?
• (i) Reyan International school Gurugram case of Pintos.
They moved an application for AB before Bombay High
Court.(murder of a student Pradumman) Stay of arrest
granted for two days and they were directed to move
before P & H High Court.--Allowed
(ii) Honey Preet Singh’s case of District Sirsa. She filed
an application for AB before Delhi High Court, showing
an address of Delhi.—Rejected. (forum Shopping)
• Interim Bail, during the pendency of regular bail
application
• Persons accused of an non-bailable offence within the
territorial jurisdiction of UP can apply for interim Bail
instead of AB according to ratio decidendi of case law,
of Amravati v. State of U.P., 2005 Cr. L.J., 755.
(Allahabd High Court) and
• Lal Kalmendra Pratap Singh v. State of U.P., 2009 (4)
SCC 437 (Supreme Court) It was held that interim
bail can be granted during the pendency of regular bail
application
• The equation:- Anticipatory bail = Interim bail (effect
of two kinds of bail orders)
• Anticipatory bail provision restored in U.P.
• Assent of President of India was accorded on 1-6-2019. State
legislatures had already passed a resolution for restoration of
provision of anticipatory bail in section 438 Cr.P.C.
• Cr.P.C., is included as entry number 2 in the concurrent list
of VII schedule to COI.
• Once an item included in the concurrent list, centre as well
as state govt can make a law on that subject. But if there
is an inconsistency between a law made by the Parliament
and law made by the state, with respect to matters
enumerated in the concurrent list, the law made by the centre
will prevail, unless such a law, if it has been reserved for the
consideration of the President, has received his assent,
prevail in that stats (A. 254)
• When section 438 Cr.P.C., was scraped during emergency, in
U.P. by Cr.P.C., (U.P. AA) Act No. 16 of 1976, prior sanction
of the President of India was obtained in view of article 254
of C.O.I. (Hemwati Nandan Bahuguna was the chief Minister
at that time.)
• Now to restore section 438 Cr.P.C., in U.P., the approval of
state legislatures, signature of Governor of U.P. and prior of
President of India was necessary. The assent was granted by
the President of India on 1-6-2019. U.P. govt had already
passed Cr.P.C., (U.P. Amendment) Bill 2018 (passed on 31-8-
2018) which aims at restoring the provision of anticipatory
bail in U.P.
• The said Amending Act, 2018 was published in extra-
ordinary Gazette on 6-6-2019. thus, provision of AB has
been revived in U.P. w.e.f., 6-6-2019.
• Anticipatory bail provision remain suspended in U.P. for
more than 4 decades.
• One of the new feature of the AA Act is that it will not be
necessary for the accused to remain present during the
hearing of the application for anticipatory bail.
• It also contains certain mandatory conditions to be imposed
while granting AB including not allowing AB if offence is
punishable with death penalty or is an offence under
Gangsters Act or under the S/C and S/T (Prevention of
atrocities) Act, 1989.
• In 2009, the state law commission in its third report had also
recommended for restoration of section 438 Cr.P.C.
• AB application has to be decided within 30 days of filing of
such an application.
 Offence u/s 63 Copy Right Act, 1957 is bailable or
non-bailable?
• Exercise:-
• Punishment u/s 63 of Copy Right Act shall not be less
than 6 months, but which may extend up to 3 years
and with fine which shall not be less than Rs. 50,000/-,
which may extend to Rs. 2 lakhs.
• Application for AB was rejected since the offence of
infringement of copy right was bailable in the opinion
of AP High Court.
• Schedule I of Cr.P.C., offences punishable for less than
3 years or with fine only are bailable, between more
than 3 years but not more than 7 years are non-bailable.
• Ratio decidendi:- The expression
‘imprisonment for a term which may extend
up to 3 years, would not come squarely within
the expression ‘imprisonment for three years
and upwards. Hence offence was held to be
bailable one. (Amar Nath Vyas v. State of
A.P., 2007 Cr.L.J. 2025)
• Bail at Appellate or Revisional Level: - The Appellate
Court is also empowered to release the appellant on
bail in cases of appeal against conviction u/s 389 (1)
Cr.P.C., irrespective of whether the offence is bailable
or non-bailable, the release of convicted persons on
bail is entirely at the direction of the Appellate Court.
Likewise, when the appeal is presented against
acquittal u/s 378 Cr.P.C., the High Court has power to
issue the warrant and direct that the accused be
arrested and brought before it or any subordinate
court, and the court before which he is brought may
commit him to the prison pending the disposal of the
appeal or admit him to bail u/s 390 Cr.P.C. (Now see
section 437-A)
• Condition :- Notice to PP.
• The appellate court shall before releasing a on bail a
convicted person who is convicted of an offence
punishable with death, or L.I., or imprisonment not
less than 10 years, shall give opportunity to PP for
showing cause in writing against such release.
• Cancellation of bail:- If a convicted person is
released on bail u/s 389, it shall be open to PP to file
application for cancellation of such a bail.} + by
Cr.P.C., AA 2005 w.e.f., 23-6-2006
• Similarly, the revisional court has also power to grant
bail u/s 397 (1). When the matter is referred to the
High Court for reference u/s 395 (1) the court making
reference has power to grant bail u/s 395 (3).
• Bail may also be granted u/s 389 (3) after
conviction but before filing appeal, by the sentencing
court. The sentencing court is required to grant bail in
two circumstances (i) where such person being
already on bail, is sentenced to imprisonment for a
term not exceeding 3 years; or, (ii) where the offence
of which such person has been convicted, is a
bailable offence and the person is already on bail.
 Lecture 2.16- Process to compel attendance of accused (Arrest)

• Accused is presumed to be innocent till proved guilty

beyond reasonable doubt. The concept of fair trial also
demands that trial should be conducted in the presence of
the accused person so that he may defend himself, and if
found guilty, he should be available to receive the
punishment awarded to him.
• Arrest and detention of accused before and during trial is
likely to cause direct or indirect obstructions in
preparation of his defence and thus may not be conducive
to fair trial. Hence provisions for issue of summons, B.W.,
N.B.W.. Warrant u/s 82, 83,(or Bail) are aimed at ensuring
the presence of accused at his trial.
• Warrant cases are comparatively serious as
compared to summons cases. In summons
cases accused is less likely to abscond/
disobey the summons (cf. 174 IPC) than a
warrant case.
• In summons cases, normally summon shall be
issued first and in a warrant case, summon or
arrest warrant is issued at the discretion of
the court.(S. 204) But warrant may be issued
in lieu of, or in addition to summons (87)
• Service of summons (62)- by police, personally on
the accused by tendering him one of the duplicates
of the summon. Accused to sign a receipt on the
back of other duplicate.
• Service of summons on adult male member residing
with him, if accused can not be found. (cf. female
5/15 C.P.C.) section 64
• Service of summons by affixing one of the duplicate
of summons to some conspicuous part of the house
in which accused ordinarily resides.(65)
• Service of summon on govt. servant-through
head of office (66) HOD will cause the
summon served and return its duplicate to the
court concerned.
• Service of summons outside local limits in
different district (summon cell)—through
CJM/CMM of that district (67) Serving officer
to submit his affidavit along with duplicate of
summon duly served to the court concerned.
 Service of B.W. and N.B.W.
• Arrest means apprehension of a person by a legal authority
resulting in deprivation of his liberty.
• A) Arrest in pursuance of warrant issued by Magistrate/court
• B) Arrest without warrant (in cognizable cases) eg., 302/304B
• Warrant of arrest is a written order issued and signed/sealed by
Magistrate/court addressed to a police officer/any other person
commanding him to arrest the body of the accused named in
the warrant. But he must be produced before the Magistrate
within 24 hours of arrest, excluding the time of journey from
place of arrest to court. (FR u/a 22(2) COI) to see the legality of
arrest/grant of bail. (personal liberty FR is involved)
• Warrant remains in force till its execution unless it is cancelled
by the court 70(2)
• B.W. is always endorsed for bail, that if such person
executes PB with one/ two sureties for his
attendance before the court at a specified date and
time and thereafter also until otherwise directed by
the court. Accused will be released if, he furnishes his
P.B. and bond of surety or sureties to the satisfaction
of arresting police officer.
• Endorsement shall state amount of PB and BB,
number of sureties, and date and time at which
accused is to attend court.
• If PB and BB are given, the same shall be forwarded
to the court.
• B.W. can be issued both in bailable and non-
bailable offences. If non-bailable offence is of
technical nature, court can issue B.W.
• Mode of execution of warrant: by police officer or
by another whose name is endorsed.(74)
• Validity—warrant can be executed at any place in
India (77)
• If accused is resident of another district, warrant
shall be sent to SP of that district for execution
(78) He will get it served and return the same
along with accused to the original court who had
sent the warrant.
• After arrest what?– If the warrant was
bailable, and accused is ready to furnish his
P.B. as well as B.B., accused shall be released
with a direction to appear before the court
concerned on the date fixed. Bonds shall be
forwarded to the court concerned.
• If the warrant was N.B.W., arrested person
shall be produced before the CJM of that
district where he was arrested,(he may take
bail) or before the court who had issued
N.B.W.(he may also take bail)
 Process to compel appearance of accused Contd…
Proclamation u/s 82 Cr.P.C.,

• Conditions for Proclamation:

• 1. warrant was issued against accused
• 2. Accused has absconded
• 3. Or accused is concealing himself so that
warrant can not be executed
• …..court may publish a written proclamation
against the accused requiring him to appear in
court at a specified date, which shall not less
than 30 days from the date of publication.
• Proclamation u/s 82 Cr.P.C. how made?
• A) Publically read in some conspicuous place of the
town or village/mohalla, where accused resides
• B) shall be affixed in some conspicuous part of the
house of the accused in which he resides
• C) its copy shall be affixed to some conspicuous part
of the court house
• D) shall be published in a daily news paper circulating
in the place, where accused resides.
• …..Every such proclamation shall contain the details
of name of the court, crime number, sections of IPC,
name of police station and date for appearance in the
court.
 Process to compel appearance of accused Contd…
Attachment of property of accused u/s 83 Cr.P.C.,
• The property, movable or immovable of accused
against whom warrant u/s 82 has been issued, can be
attached and sold u/s 83 in order to compel his
attendance in court.
• Conditions for attachment of property u/s 83:-
• A) proclamation u/s 82 was issued
• B) accused is about to dispose of whole or part of his
property or
• C) accused is about to remove the whole or any part
of his property from the local jurisdiction of the
court.
• Warrant u/s 82 and 83 can be issued simultaneously
• If property ordered to be attached u/s 83 is debt
or movable property, its attachment can be made
• A) by seizure; or
• B) by appointment of receiver; or
• C) by prohibiting delivery of such movable
property to the accused; or
• D) by all or any two methods
• If property ordered to be attached u/s 83 is
immovable paying revenue to govt. (agriculture
land), it will be attached through collector of the
district where property is situated.
• If the property is situated in urban area, like
land, house or building attachment can be
done---
• A) by taking possession ; or
• B) by appointment of receiver ; or
• C) by prohibiting payment of rent to the
accused;
• D) by all or any two of such methods, as the
court thinks fit.
• If property is live stock or is of perishable
nature, it may be sold.
• Claims and objections can be filed against
attachment (84)
• Court can release the attached property if
accused appears in the court.
• Once the accused appears, the purpose of
issuing summon/B.W./N.B.W./proclamation
u/s 82 and attachment of property u/s 83 Cr.
P.C. is achieved.
• Lecture 2.17 Process to compel production of things
• A- Summons to produce things
Summons to produce document or other thing.
Whenever any Court or any officer in charge of a police
station considers that the production of any document or
other thing is necessary or desirable for the purposes of
any investigation, inquiry, trial or other proceeding under
this Code by or before such Court or officer, such Court
may issue a summons, or such officer a written order, to
the person in whose possession or power such document
or thing is believed to be, requiring him to attend and
produce it, or to produce it, at the time and place stated
in the summons or order.
• Any person required under this section merely
to produce a document or other thing shall be
deemed to have complied with the requisition
if he causes such document or thing to be
produced instead of attending personally to
produce the same.(Section 91)
 Procedure as to production of letters and telegrams:
If any document, parcel or thing in the custody of a postal or
telegraph authority is, in the opinion of the District Magistrate, Chief
Judicial Magistrate, Court of Session or High Court wanted for the
purpose of any investigation, inquiry, trial or other proceeding under
this Code, such Magistrate or Court may require the postal or
telegraph authority, as the case may be, to deliver the document,
parcel or thing to such person as the Magistrate or Court directs.
• If any such document, parcel or thing is, in the opinion of any other
Magistrate, whether Executive or Judicial, or of any Commissioner of
Police or District Superintendent of Police, wanted for any such
purpose, he may require the postal or telegraph authority, as the
case may be, to cause search to be made for and to detain such
document, parcel or thing pending the order of a District Magistrate,
Chief Judicial Magistrate or Court. (Section 92)
• B- Production of things through Search warrant:
• When search-warrant may be issued.
• A) Where any Court has reason to believe that a person
to whom a summons order under section 91 or a
requisition under sub-section (1) of section 92 has been,
or might be, addressed, will not or would not produce
the document or thing as required by such summons or
requisition, or
• B) where such document or thing is not known to the
Court to be in the possession of any person, or
• C) where the Court considers that the purposes of any
inquiry, trial or other proceeding under this Code will be
served by a general search or inspection,
• It may issue a search-warrant; and the person
to whom such warrant is directed, may search
or inspect in accordance therewith and the
provisions hereinafter contained.
• The Court may, if it thinks fit, specify in the
warrant the particular place or part thereof to
which only the search or inspection shall
extend; and the person charged with the
execution of such warrant shall then search or
inspect only the place or part so specified.
(Section 93)
Search of place suspected to contain stolen property, forged
documents, etc.
If a District Magistrate, SDM or Magistrate of the first class,
upon information and after such inquiry as he thinks necessary,
has reason to believe that any place is used for the deposit or
sale of stolen property, or for the deposit, sale or production of
any objectionable article to which section 94 applies, or that
any such objectionable article is deposited in any place, he may
by warrant authorize any police officer above the rank of a
constable—
a) to enter, with such assistance as may be required, such
place,
b) to search the same in the manner specified in the warrant,
c) to take possession of any property or article therein found
which he reasonably suspects to be stolen property or
objectionable article to which this section applies,
d) to convey such property or article before a Magistrate,
or to guard the same on the spot until the offender is
taken before a Magistrate, or otherwise to dispose of it in
some place of safety,
e) to take into custody and carry before a Magistrate
every person found in such place who appears to have
been privy to the deposit, sale or production of any such
property or article knowing or having reasonable cause to
suspect it to be stolen property or, as the case may be,
objectionable article to which this section applies.
(see section 94)
• List of objectionable articles for search:
a) counterfeit coin;
b) pieces of metal made in contravention of the Metal Tokens
Act, 1889, or brought into India in contravention of any
notification for the time being in force under section 11 of
the Customs Act, 1962;
c) counterfeit currency note; counterfeit stamps;
d) forged documents;
e) false seals;
f) obscene objects referred to in section 292 of the Indian
Penal Code;
g) instruments or materials used for the production of any of
the articles mentioned in clauses (a) to (f).
(see section 94)
Power to declare certain publications forfeited and to issue
search-warrants for the same. Where any newspaper, or book,
or any document, wherever printed, appears to the State
Government to contain any matter the publication of which is
punishable under section 124A or section 153A or section
153B or section 292 or section 293 or section 295A of the IPC,
the State Government may, by notification, stating the
grounds of its opinion, declare every copy of the issue of
the newspaper containing such matter, and every copy of such
book or other document to be forfeited to Government, and
thereupon any police officer may seize the same wherever
found in India and any Magistrate may by warrant authorize
any police officer not below the rank of sub-inspector to enter
upon and search for the same in any premises where any
copy of such issue, or any such book or other document may
be or may be reasonably suspected to be. (section 95)
• Search for persons wrongfully confined
• If any District Magistrate, SDM or Magistrate of the first
class has reason to believe that any person is confined
under such circumstances that the confinement
amounts to an offence, he may issue a search-warrant,
and the person to whom such warrant is directed may
search for the person so confined; and such search shall
be made in accordance therewith, and the person, if
found, shall be immediately taken before a Magistrate,
who shall make such order as in the circumstances of
the case seems proper. (section 97)
• E.g., Search of females kept in brothel or children kept
for begging
• Power to compel restoration of abducted females
• Upon complaint made on oath of the abduction or
unlawful detention of a woman, or a female child
under the age of eighteen years for any unlawful
purpose, a District Magistrate, SDM or Magistrate of
the first class may make an order for the immediate
restoration of such woman to her liberty, or of such
female child to her husband, parent, guardian or
other person having the lawful charge of such child,
and may compel compliance with such order, using
such force as may be necessary. (section 98)
 Persons in charge of closed place to allow search.
1) Whenever any place liable to search or inspection under this
Chapter is closed, any person residing in, or being in charge of,
such place, shall, on demand of the officer or other person
executing the warrant, and on production of the warrant, allow
him free ingress thereto, and afford all reasonable facilities for a
search therein.
• 2) If ingress into such place cannot be so obtained, the officer or
other person executing the warrant may proceed in the manner
provided by section 47 (2).
• 3) Where any person in or about such place is reasonably
suspected of concealing about his person any article for which
search should be made, such person may be searched and if
such person is a woman, the search shall be made by another
woman with strict regard to decency.
• 4) Before making a search under this Chapter,
the officer or other person about to make it
shall call upon two or more independent and
respectable inhabitants of the locality in
which the place to be searched is situate or of
any other locality if no such inhabitant of the
said locality is available or is willing to be a
witness to the search, to attend and witness
the search and may issue an order in writing
to them or any of them so to do.
5) The search shall be made in their presence, and a list
of all things seized in the course of such search and of
the places in which they are respectively found shall be
prepared by such officer or other person and signed by
such witnesses; but no person witnessing a search under
this section shall be required to attend the Court as a
witness of the search unless specially summoned by it.
6) The occupant of the place searched, or some person
in his behalf, shall, in every instance, be permitted to
attend during the search, and a copy of the list prepared
under this section, signed by the said witnesses, shall be
delivered to such occupant or person.
7) When any person is searched u/s 100 (3), a list of
all things taken possession of shall be prepared, and
a copy thereof shall be delivered to such person.
8) Any person who, without reasonable cause,
refuses or neglects to attend and witness a search
under this section, when called upon to do so by an
order in writing delivered or tendered to him, shall
be deemed to have committed an offence under
section 187 of the IPC.
(See section 100 Cr.P.C.)
xxxGod bless my all students. Dr.N.K.Bahlxxx
• Lecture 2.18- Conditions requisite for initiation of
proceedings before the courts: cognizance
• What is taking cognizance is not defined in Cr.P.C. It
merely means “become aware of it.”
• The word cognizance is used in Cr.P.C. to indicate the
point when a Magistrate or judge first take judicial
notice of an offence.
• The Magistrate will not take cognizance, if no offence
is made out from reading of statement of the
complainant and witnesses u/s 200 and 202 Cr.P.C.,
or if no offence is made out after reading the case
diary prepared by the I.O. after lodging of FIR
First of all, Cognizance of offences by Magistrates:
Subject to the provisions of Chapter 14 of Cr.P.C., any Magistrate of the
first class, and any Magistrate of the second class specially empowered
in this behalf u/s 190 (2), may take cognizance of any offence—
a) upon receiving a complaint of facts which constitute such offence;
b) upon a police report of such facts; (on charge sheet)
c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.

• The Chief Judicial Magistrate may empower any Magistrate of the

second class to take cognizance u/s 190 (1) of such offences as are
within his competence to inquire into or try.
• Transfer on application of the accused.—When a
Magistrate takes cognizance of an offence suo
motu u/s 190 (1) (c),{He becomes witness to the
crime} the accused shall, before any evidence is
taken, be informed that he is entitled to have the
case inquired into or tried by another Magistrate,
and if the accused or any of the accused, if there
be more than one, objects to further proceedings
before the Magistrate taking cognizance, the case
shall be transferred to such other Magistrate as
may be specified by the Chief Judicial Magistrate
in this behalf. (191)
• Making over (Transfer) of cases to Magistrates
• Any CJM may, after taking cognizance of an offence, make
over the case for inquiry or trial to any competent
Magistrate subordinate to him.
• Any Magistrate of the first class empowered in this behalf by
the Chief Judicial Magistrate may, after taking cognizance of
an offence, make over the case for inquiry or trial to such
other competent Magistrate as the Chief Judicial Magistrate
may, by general or special order, specify, and thereupon
such Magistrate may hold the inquiry or trial. (192)
• Police station (Thana) wise allotment of criminal cases is
done by CJM in a district. CJM has general power of
transferring the cases from one court to another.
• Condition Committal: No direct cognizance of
cases by the court of session (193)
• Except as otherwise expressly provided by this
Cr. P. C., or by any other law for the time being
in force, no Court of Session shall take
cognizance of any offence as a Court of
original jurisdiction unless the case has been
committed to it by a Magistrate under this
Code.
• Condition: Transfer of cases
• Additional and Assistant Sessions Judges to
try cases made over to them.—As Additional
Sessions Judge or Assistant Sessions Judge*
shall try such cases as the Sessions Judge of
the division may, by general or special order,
make over (transfer) to him for trial or as the
High Court may, by special order, direct him to
try. (194)
• Condition: Complaint by public servant
• Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for
offences relating to documents given in evidence.
• No Court shall take cognizance—
(i) of any offence punishable under sections 172 to 188 of
the IPC or
(ii) of any abetment of, or attempt to commit, such offence,
or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate; (194 (1)(a)
• Condition: Complaint by presiding officer of the court
• No Court shall take cognizance—
• (i) of any offence punishable under any of the following sections of
the IPC, namely, sections 193 to 196, 199, 200, 205 to 211 and 228,
when such offence is alleged to have been committed in, or in
relation to, any proceeding in any Court, or
• (ii) of any offence described in section 463, or punishable under
section 471, section 475 or section 476, of IPC, when such offence is
alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any Court, or
• (iii) of any criminal conspiracy to commit, or attempt to commit, or
the abetment of, any offence specified in sub-clause (i) or sub-
clause (ii),
• except on the complaint in writing of that Court or by such officer
of the Court as that Court may authorize in writing in this behalf, or
of some other Court to which that Court is subordinate. (195 (1) (b)
and 340 Cr.P.C.)
• Condition : Previous sanction of central/state
government
Prosecution for offences against the State and for
criminal conspiracy to commit such offence.
No Court shall take cognizance of—
a) any offence punishable under Chapter VI or
under section 153A, section 295A or 505 (1) of
the IPC, or
b) a criminal conspiracy to commit such offence, or
c) any such abetment, as is described in section
108A of the IPC,
except with the previous sanction of the Central
Government or of the State Government. (196 (1)
• Condition : Previous sanction of central/state
govt/DM
• No Court shall take cognizance of—
• a) any offence punishable under section 153B or sub-
section (2) or sub-section (3) of section 505 of the
IPC, or
• B) a criminal conspiracy to commit such offence,
• except with the previous sanction of the Central
Government or of the State Government or of the
District Magistrate.
(see section 196 (I-A)
• Condition : Previous sanction of state govt/DM
• No Court shall take cognizance of the offence of any criminal
conspiracy punishable under section 120B of IPC, (other than
a criminal conspiracy to commit an offence punishable with
death, imprisonment for life or rigorous imprisonment for a
term of two years or upwards), unless the State Government
or the District Magistrate has consented in writing to the
initiation of the proceedings:

Where the criminal conspiracy is one to which the provisions of

section 195 apply, no such consent shall be necessary.
( see section 196 (2) Cr.P.C.
• Condition : Previous sanction of central/state government for
prosecution of judges and public servant. (197 (1)
• Prosecution of Judges and public servants.
• When any person who is or was a Judge or Magistrate or a public
servant not removable from his office save by or with the sanction of
the Government is accused of any offence alleged to have been
committed by him while acting or purporting to act in the discharge
of his official duty,
• No Court shall take cognizance of such offence except with the
previous sanction
• a) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed, in
connection with the affairs of the Union, of the Central
Government;
• b) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed, in
connection with the affairs of a State, of the State Government:
• Condition : Previous sanction of central government
for taking cognizance against a member of Armed
forces.
• No Court shall take cognizance of any offence alleged
to have been committed by any member of the
Armed Forces of the Union while acting or
purporting to act in the discharge of his official duty,
• except with the previous sanction of the Central
Government.
• Section 197 (2) Cr.P.C.
•
• Condition : Complaint of husband/wife in Adultery or
enticing a married woman.
• Prosecution for offences against marriage.
• No Court shall take cognizance of an offence punishable under
Chapter XX of IPC (offences relating to marriage) except upon
a complaint made by some person aggrieved (husband or
wife) by the offence:
• a) But where such person is under the age of 18 years, or is an
idiot or a lunatic, or is from sickness or infirmity unable to
make a complaint, or is a woman who, according to the local
customs and manners, ought not to be compelled to appear
in public, some other person may, with the leave of the
Court, make a complaint on his or her behalf;
• b) But where such person is the husband and he is
serving in any of the Armed Forces of the Union under
conditions which are certified by his Commanding
Officer as precluding him from obtaining leave of
absence to enable him to make a complaint in person,
some other person authorized by the husband may
make a complaint on his behalf;
• c) where the person aggrieved by an offence
punishable u/s 494 or 495 of the IPC (bigamy) is the
wife, complaint may be made on her behalf by her
father, mother, brother, sister, son or daughter or by
her father’s or mother’s brother or sister, or, with the
leave of the Court, by any other person related to her
by blood, marriage or adoption.
• Condition : Time limit one year for taking cognizance in sexual
assault cases u/s 376 IPC
• No Court shall take cognizance of an offence under section
376 of the IPC, where such offence consists of sexual
intercourse by a man with his own wife, the wife being under
eighteen years of age, if more than one year has elapsed
from the date of the commission of the offence.
• Condition: Complaint by aggrieved person in cruelty

• 198A. Prosecution of offences under section 498A (Cruelty)

of the IPC.
• No Court shall take cognizance of an offence punishable under
section 498A of the IPC except upon a police report of facts
which constitute such offence or upon a complaint made by
the person aggrieved by the offence or by her father, mother,
brother, sister or by her father’s or mother’s brother or sister
or, with the leave of the Court, by any other person related to
her by blood, marriage or adoption.
• Condition: Complaint by wife in sexual intercourse during judicial
separation
• 198B. Cognizance of offence
• No Court shall take cognizance of an offence punishable under
section 376B of the IPC where the persons are in a marital
relationship, except upon prima facie satisfaction of the facts
which constitute the offence upon a complaint having been
filed or made by the wife against the husband.
• Condition: Complaint by aggrieved person in defamation cases
• Prosecution for defamation.
• No Court shall take cognizance of an offence punishable under
Chapter XXI of the IPC (defamation) except upon a complaint
made by some person aggrieved by the offence:
• But where such person is under the age of eighteen years, or
is an idiot or a lunatic, or is from sickness or infirmity unable
to make a complaint, or is a woman who, according to the
local customs and manners, ought not to be compelled to
appear in public, some other person may, with the leave of
the Court, make a complaint on his or her behalf.
• Condition : Complaint by public prosecutor in defamation of higher
dignitaries. The court of session can take direct cognizance of the case
without committal proceedings
• Notwithstanding anything contained in Cr.P.C., when any offence
falling under Chapter XXI of the IPC (defamation) is alleged to
have been committed against a person who, at the time of such
commission, is the President of India, the Vice-President of
India, the Governor of a State, the Administrator of a Union
territory or a Minister of the Union or of a State or of a Union
territory, or any other public servant employed in connection
with the affairs of the Union or of a State in respect of his
conduct in the discharge of his public functions, a Court of
Session may take cognizance of such offence, without the case
being committed to it, upon a complaint in writing made by the
Public Prosecutor after obtaining the previous sanction of the
appropriate government.
• The primary object behind this special procedure is
to provide a machinery enabling the govt to step in
to maintain confidence in the purity of
administration when high dignatories are wrongly
defamed.
• But victim’s right to file complaint is not barred
• But this provision shall not affect the right of the
person against whom the offence is alleged to have
been committed, (victim) to make a complaint in
respect of that offence before a Magistrate having
jurisdiction or the power of such Magistrate to take
cognizance of the offence upon such complaint.
xxxGod bless my all students. Dr. Bahlxxx
• Lecture 2.19 – Complaint to Magistrate
• The word complaint is defined in section 2 (d).
• “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking
action under this Code, that some person, whether
known or unknown, has committed an offence, but
does not include a police report.
• But a report made by a police officer in a case which
discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a
complaint; and the police officer by whom such
report is made shall be deemed to be the
complainant;
 Examination of complainant.—A Magistrate taking
cognizance of an offence on complaint shall examine
upon oath the complainant and the witnesses present, if
any, and the substance of such examination shall be
reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
• But when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses
• a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
• b) if the Magistrate makes over the case for inquiry or
trial to another Magistrate under section 192:
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,—
a) if the complaint is in writing, return it for
presentation to the proper Court with an
endorsement to that effect;
b) if the complaint is not in writing, direct the
complainant to the proper Court. (201 Cr.P.C.)
 Postponement of issue of process. Any Magistrate, on
receipt of a complaint of an offence of which he is authorized
to take cognizance or which has been made over to him
under section 192, may, if he thinks fit, and shall, in a case
where the accused is residing at a place beyond the area in
which he exercises his jurisdiction, 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:
• But no such direction for investigation shall be made,—
• a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Session;
or
 b) 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 u/s 200 (1), the Magistrate may, if he
thinks fit, take evidence of witnesses on oath:
• But 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.
• If an investigation u/s 200 (1) is made by a person not
being a police officer, he shall have for that
investigation all the powers conferred by this Code
 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. (203)
But if there are sufficient grounds for proceeding
against the accused, he may issue summon or
warrant against the accused.(204)

xxxGod bless my all students. Dr.N.K.Bahlxxx

• Lecture 2.20 -Commencement of proceedings before a
Magistrate
• The cognizance of an offence by a Magistrate implies that
he has applied his mind to the offence alleged in the
complaint or police report with a view to take further
proceedings for the trial of the accused person.
• Section 200 to 203 of Cr.P.C. are useful for weeding out
false, frivolous and vexatious complaints aimed at
harassing the accused persons. This applies when
complainant approaches the court by filing direct
complaint in the competent court instead of filing FIR at
the police station.
• This special procedure is not needed in cases where
cognizance is taken on a police report/charge sheet filed
after investigation.
• Section 204 mentions the conditions in which a
Magistrate may issue a summon or warrant for the
purpose of securing the attendance of the accused at the
time of the trial.
• Section 205 empowers the Magistrate to dispense with
the personal attendance of the accused at the time of
trial in deserving cases.
• Section 206 requires a Magistrate to issue special
summons in petty offences so as to enable the accused,
if he so desires, to send the plea of guilt to the
Magistrate and remit the amount of fine mentioned in
the summons without the necessity of personally
appearing before the Magistrate.
• Section 207 and 208 provide for the supply to the
accused persons of copies of documents like charge
sheet, statements recorded by the I. O., during
investigation etc., so that the accused is enabled to know
adequately and in time the alleged charges against him
and the evidence the prosecution intends to give against
him at the trial.
• Section 209 prescribes the procedure, of committal of
cases, to be followed by the Magistrate when the offence
is exclusively triable by a court of session.
• Section 210 provides for the procedure to be followed
when there is a complaint case as well as police
investigation in respect of the same offence.
• Procedure contained in sections 200 to 203 we have
learnt in the last lecture.
• If, after considering the statement (if any) of the complainant
and the witnesses (u/s 200) and the result of the inquiry or
investigation (if any) u/s 202, the Magistrate is of the opinion
that there is no sufficient ground for proceeding, (no case
made out) he shall dismiss the complaint u/s 203 Cr.P.C. after
recording his reasons for so doing.
• Issue of process: a summon or warrant-
• If in the opinion of a Magistrate taking cognizance of an
offence there is sufficient ground for proceeding, and the
case appears to be—
• a) a summons-case, he shall issue his summons
for the attendance of the accused, or
• b) a warrant-case, he may issue a warrant, or, if he
thinks fit, a summons, for causing the accused to be
brought or to appear at a certain time before such
Magistrate or (if he has no jurisdiction himself)
before some other Magistrate having jurisdiction.
• The court may issue of warrant in lieu of, or in
addition to, summon, court is of the opinion that
accused has absconded or will not obey the
summons or has not appeared after service of
summons u/s 87.
• The conditions before issue of process-
• A) A list of prosecution witnesses to be filed in court.
• B) A copy of the complaint to be filed in court.
• C) Process fees to be filed for issue of process.
• No summons or warrant shall be issued against the
accused until a list of the prosecution witnesses has
been filed. (204(2)
• In a proceeding instituted upon a complaint made in
writing, every summons or warrant shall be
accompanied by a copy of such complaint. (204(3)
• When by any law for the time being in force any
process-fees or other fees are payable, no process
shall be issued until the fees are paid and, if such fees
are not paid within a reasonable time, the Magistrate
may dismiss the complaint. (204(4)
• Power to exempt/dispense with personal
attendance of the accused (205)
1) Whenever a Magistrate issues a summons, he
may, if he sees reason so to do, dispense with
the personal attendance of the accused and
permit him to appear by his Advocate/pleader.
2) But the Magistrate inquiring into or trying the
case may, in his discretion, at any stage of the
proceedings, direct the personal attendance of
the accused, and, if necessary, enforce such
attendance in the manner hereinbefore
provided. (for recording the statement of the
accused u/s 313 Cr.P.C.)
• Issue of special summons in petty offences:
• In order to avoid unnecessary inconvenience to
persons accused of petty offences and also to avoid
docket explosion in courts, a novel provision has
been added in section 206 Cr.P.C.
• Special summons in cases of petty offence
• If, in the opinion of a Magistrate taking cognizance of
a petty offence, the case may be summarily disposed
of u/s 260 or 261, the Magistrate shall, issue
summons to the accused requiring him either to
appear in person or by pleader before the
Magistrate on a specified date,
• If the accused desires to plead guilty to the charge
without appearing before the Magistrate, to transmit
before the specified date, by post or by messenger to the
Magistrate, the said plea in writing and the amount of
fine specified in the summons or if he desires to appear
by pleader and to plead guilty to the charge through such
pleader, to authorize, in writing, the pleader to plead
guilty to the charge on his behalf and to pay the fine
through such pleader:
• The Form Number 30 of special summon is provided in
the second schedule attached at the end of Cr.P.C.
• Imposed fine and plea of guilty can be transmitted
through money order from the post office or by any
other electronic mode.
• The amount of fine specified in summon shall not exceed
Rs. 1000/-
 • FORM No. 30
• SPECIAL SUMMONS TO A PERSON ACCUSED OF A PETTY OFFENCE
(See section 206)
• To, (Name of the accused)
• of (address)
• WHEREAS your attendance is necessary to answer a charge of a
petty offence (You were driving your car without seat belt), you are
hereby required to appear in person (or by pleader) before CJM of G.
B. Nagar on the first day of January,2024, or if you desire to plead
guilty to the charge without appearing before the Magistrate, to
transmit before the aforesaid date the plea of guilty in writing and
the sum of Rs. 500/- as fine, or if you desire to appear by pleader
and to plead guilty through such pleader, to authorize such pleader
in writing to make such a plea of guilty on your behalf and to pay the
fine through such pleader. Herein fail not.
• Dated, this first day of December, 2023 .
• (Seal of the Court) (Signature of the presiding officer)
• What is a petty offence?
• “petty offence” means any offence punishable only with
fine not exceeding one thousand rupees, but does not
include any offence so punishable under the Motor
Vehicles Act, 1939 (4 of 1939), or under any other law
which provides for convicting the accused person in his
absence on a plea of guilty.
• The State Government may, by notification, specially
empower any Magistrate to exercise the powers
conferred u/s 206 (1) in relation to any offence which is
compoundable under section 320 or any offence
punishable with imprisonment for a term not exceeding
three months, or with fine, or with both where the
Magistrate is of opinion that, having regard to the facts
and circumstances of the case, the imposition of fine
only would meet the ends of justice.
• Supply to the accused person of copies of
statements and other documents
• A) where proceedings are instituted on police report:
• If I.O. finds it convenient to do so, he may furnish to
the accused copies of all or any of the documents
referred in section 173 (5). But the Magistrate is
under imperative duty to furnish to the accused,
free of costs, copies of the statements made to the
police and of other documents to be relied upon by
the prosecution.
• But the Magistrate may, after perusing any such part of a
statement as is referred to in section 207 (iii) and considering
the reasons given by the police officer for the request, direct
that a copy of that part of the statement or of such portion
thereof as the Magistrate thinks proper, shall be furnished to
the accused:
• Also, if the Magistrate is satisfied that any document referred
to in section 207 (v) is voluminous, he shall, instead of
furnishing the accused with a copy thereof, direct that he will
only be allowed to inspect it either personally or through
pleader in Court.
• Purpose: The object of furnishing copies to the accused
person is to put him on notice of what he has to meet at the
time of inquiry or trial and to prepare himself for his defence.
B) Where the proceedings, in respect of an offence exclusively
triable by the court of session, is instituted otherwise than on a
police report (complaint case)
In complaint cases, investigation by the police is absent. There is no
case diary. None of the statement is recorded by I. O. In the absence
of any preliminary inquiry by the police, section 208 comes into play
and removes this hardship and enables the accused to know the
case against him. Section reads as follows:-
Supply of copies of statements and documents to
accused in other cases triable by Court of Session.—
Where, in a case instituted otherwise than on a police
report, it appears to the Magistrate issuing process under
section 204 that the offence is triable exclusively by the
Court of Session, the Magistrate shall without delay
furnish to the accused, free of cost, a copy of each of the
following:—
 (i) the statements recorded under section 200 or
section 202, of all persons examined by the
Magistrate;
(ii) the statements and confessions, if any,
recorded under section 161 or section 164;
(iii) any documents produced before the
Magistrate on which the prosecution proposes to
rely:
• Provided that if the Magistrate is satisfied that any
such document is voluminous, he shall, instead of
furnishing the accused with a copy thereof, direct
that he will only be allowed to inspect it either
personally or through pleader in Court
 Commitment of case to Court of Session when
offence is triable exclusively by it.—When in a case
instituted on a police report or otherwise, the
accused appears or is brought before the Magistrate
and it appears to the Magistrate that the offence is
triable exclusively by the Court of Session, he shall—
• (a) commit, after complying with the provisions of
section 207 or section 208, as the case may be, the
case to the Court of Session, and subject to the
provisions of this Code relating to bail, remand the
accused to custody until such commitment has been
made;
• b) subject to the provisions of this Code
relating to bail, remand the accused to
custody during, and until the conclusion of,
the trial;
c) send to that Court the record of the case
and the documents and articles, if any, which
are to be produced in evidence;
d) notify the Public Prosecutor of the
commitment of the case to the Court of Session.

xxxGod bless my all students. Dr.N.K.Bahlxxx