Study Material on Code of Criminal Procedure, 1973

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1. INTRODUCTION

The Code of Criminal Procedure, 1973 is the procedural law providing the machinery for
punishment of offenders under substantive criminal law. The code contains elaborate details
about the procedure to be followed in every investigation, inquiry and trial, for every offence
under the IPC or any other law. Earlier there was no uniform law of criminal procedure until
Criminal Procedure Code of 1882; it was replaced by the Code of 1898. The act was amended in
1923 and 1955. This code was repealed by the Code of 1973 enacted by Parliament on 25th
January, 1974 and made effective from 1-04-1974 so as to consolidate and amend the law
relating to Criminal Procedure. Its object is to provide machinery for determining the guilt of
and imposing punishment on offenders under the substantive criminal law, for example, the
Indian Penal Code (I.P.C.). The two Codes are to be read together. The Code also provides
machinery for punishment of offences under other Acts.

The code is complete code with respect to matters provided under it, thus the code must be
deemed to be exhaustive. The Supreme Court has said “It is the procedure that spells much of the
difference between the rule of law and the rule of whim and caprice” (Iqbal v. State of
Maharashtra (1975) 3 SCC 140).

2. IMPORTANT DEFINITIONS under the CODE

Offence

Section 2(n) of the Cr.PC defines the word “offence” to mean any act or omission made
punishable by any law for the time being in force and includes any act in respect of which a
complaint may be made under Section 20 of the Cattle-trespass Act, 1871. However, the term is
more elaborately defined under Section 40 of the IPC which states that “offence” denotes a thing
made punishable by the Code. Section 39 of the CrPC. imposes a duty on every person who is
aware of the commission of or of intention to commit an offence, to give information of certain
offences which are specified in Clause (i) to (xii) of sub-Section (1). An offence is what the

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legislature classes as punishable. Mens Rea a bad intention or guilt is an essential ingredient in
every offence.

Bailable Offence and Non-Bailable Offence

A “bailable offence” means an offence which is shown as bailable in the First Schedule or which
is made bailable by any other law for the time being in force. “Non-bailable” offence means any
other offence. [Section 2(a)]

Cognizable Offence and Non-cognizable Offence

“Cognizable offence” means an offence for which and “cognizable case” means a case in which,
a police officer may, in accordance with the First Schedule or under any other law for the time
being in force, arrest without warrant.

“Non-cognizable offence” means an offence for which, and “non-cognizable” case means a case
in which, a police officer has no authority to arrest without warrant. Thus, a non-cognizable
offence needs special authority to arrest by the police officer. [Section 2(c) and 2(l)]

In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or
more (not ordinarily all) of the offences are cognizable.

(Note: It may be observed from the First Schedule that non-cognizable offences are usually
bailable while cognizable offences are generally non-bailable).

Complaint

“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 it does not include a police report. [Section 2(d)]

However, a report made by the 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 making the report as a complainant. In general a complaint into an offence can be filed by
any person except in cases of offences relating to marriage, defamation and offences mentioned

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under Sections 195 and 197. A complaint in a criminal case is what a plaint is in a civil case. The
requisites of a complaint are:

• an oral or a written allegation;

• some person known or unknown has committed an offence;
• it must be made to a magistrate; and
• it must be made with the object that he should take action.

There is no particular format of a complaint. A petition addressed to the Magistrate containing an

allegation that an offence has been committed, and ending with a prayer that the culprit be
suitably dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705)

Police report is expressly excluded from the definition of complaint but the explanation to
Section 2(d) makes it clear that such report shall be deemed to be a complaint where after
investigation it discloses commission of a non-cognizable offence. Police report means a report
forwarded by a police officer to a Magistrate under Subsection (2) of Section 173.

Bail

It means the release of the accused from the custody of the officers of law and entrusting him to
the private custody of persons who are sureties to produce the accused to answer the charge at
the stipulated time or date.

An “anticipatory bail” is granted by the High Court or a Court of Session, to a person who
apprehends arrest for having committed a non-bailable offence, but has not yet been arrested
(Section 438). An opportunity of hearing must be given to the opposite party before granting
anticipatory bail (State of Assam v. R.K. Krishna Kumar AIR 1998 SC 144).

Inquiry

It means every inquiry other than a trial, conducted under this Code by a Magistrate or Court.
[Section 2(g)]. It carries the following three features:

The inquiry is different from a trial in criminal matters;

Inquiry is wider than trial;

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It stops when trial begins.

Investigation

It includes all the proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in
this behalf. [Section 2(h)]

The three terms – ‘investigation’, ‘inquiry’ and ‘trial’ denote three different stages of a criminal
case. The first stage is reached when a police officer either on his own or under orders of a
Magistrate investigates into a case (Section 202). If he finds that no offence has been committed,
he submits his report to the Magistrate who drops the proceedings. But if he is of different
opinion, he sends that case to a Magistrate and then begins the second stage – a trial or an
inquiry. The Magistrate may deal with the case himself and either convict the accused or
discharge or acquit him. In serious offences the trial is before the Session’s Court, which may
either discharge or convict or acquit the accused. (Chapter XVIII)

Judicial Proceeding

It includes any proceeding in the course of which evidence is or may be legally taken on oath.
The term judicial proceeding includes inquiry and trial but not investigation. [Section 2(i)]

Pleader

With reference to any proceedings in any Court, it means a person authorised by or under any
law for the time being in force, to practise in such Court and includes any other person appointed
with the permission of the Court to act in such proceeding. [Section 2(q)] It is an inclusive
definition and a non-legal person appointed with the permission of the Court will also be
included.

Public Prosecutor

A “public prosecutor” means any person appointed under Section 24, and includes any person
acting under the directions of a Public Prosecutor. [Section 2(u)]

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Public prosecutor, though an executive officer is, in a larger sense, also an officer of the Court
and he is bound to assist the Court with his fair views and fair exercise of his functions.

Summons and Warrant Cases

“Summons case” means a case relating to an offence and not being a warrant case. [Section
2(w)] A “Warrant case” means a case relating to an offence punishable with death, imprisonment
for life or imprisonment for a term exceeding two years. [Section 2(x)]

Those cases which are punishable with imprisonment for two years or less are summons cases,
the rest are all warrant cases. Thus, the division is based on punishment which can be awarded.
The procedure for the trial of summons cases is provided by Chapter XX and for warrant cases
by Chapter XIX.

3. Functionaries under the Criminal Procedure Code 1973

a. Police

The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say
anything about the constitution of Police. It assumes the existence of police and devolves various
powers and responsibilities on to it.

Functions

As per The Police Act, 1861, the police force is an instrument for the prevention and detection of
crime.

Organization

Every state establishes its own police force which is formally enrolled. The force consists of such
number of officers and men and is constituted in such manner as the state govt. may decide from
time to time. The overall administration of police in the entire state is done by Director General
of Police. The administration of police in a district is done by District Superintendent of Police
under the general control and direction of District Magistrate who is usually the Collector of the
district. Every police officer appointed to the police force, other than Inspector General of Police

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and District Superintendent of Police, receives a certificate in the prescribed form by virtue of
which he is vested with the powers, functions and privileges of a police officer.

The Police Act, 1888 also empowers the Central Govt to create special police districts and to
extend the jurisdiction of police of any state to that district. The Police Act 1949, creates a police
force for Union Territories.

Powers

The Cr P C confers specific powers on the members of police force who are enrolled as police
officers. These powers include power to make an arrest, search, and investigate. Wider powers
have been given to police officers in charge of a police station. As per Section 2(s), police station
means any post or place that is generally or specially designated by the state govt as a police
station. Further, as per Section 2(o)officer in charge of a police station includes the officer who
is present at the police station and is next in rank to the police officer in charge, if he is on leave
or is absent. This only increases the importance of the police officer in charge of a police station.

Section 36 of CrPC specifies that officers of police who are superior in rank to police officer in
charge of a police station can exercise all the powers of that police officer. In the case of State of
Bihar v. J A C Saldanha SCC 1980, SC held that if the Inspector General (Vigilance) is an
officer superior to the officer in charge of the police station he can exercise the powers of that
officer throughout the territory to which the superior officer has been appointed, which, in this
case is the entire territory of Bihar.

b. Prosecutor

A crime is a wrong not only against an individual but is also against the society. It is because of
this reason that the state, which represents the collective of people, participates in the criminal
trial of an accused, especially if the crime is of cognizable nature. Public Prosecutor or Assistant
Public Prosecutor is the state counsel for such trials. As per section 2(u), Public Prosecutor
means any person appointed under Section 24 and includes any person acting under the
directions of the public prosecutor.

Section 24 of CrPC specifies the rules for appointment of Public Prosecutor. A person shall be
eligible to be appointed in High Court as Public Prosecutor if he has been in practice as an

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advocate for not less than seven years. The appointment can be made only after consultation with
the High Court. Further, the central govt. can appoint a Public Prosecutor for conducting in a
high court any prosecution, appeal, or another proceeding on behalf of the Central Govt.

Assistant Public Prosecutor is appointed under Section 25. It authorizes the State Govt. to
appoint one or more APPs for every district for conducting any case in Court of Magistrates. No
police officer is allowed to be appointed as APP.

Duties

The duty of a public prosecutor mainly consists in conducting the prosecution on behalf of the
State. His goal is not merely to produce a conviction but the help the court arrive at a just
decision. He also appears as the state counsel in criminal appeals, revisions, and such other
matters in the Session Courts and High Court. It is important to note that he does not appear on
behalf of the accused.

Powers

As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the authority to
appear and plead before any court in any case entrusted to him.

As per Section 321, he can withdraw from the prosecution against any person with the consent of
the court.

According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session
Courts and the High Courts and Assistant Public Prosecutors are appointed for conducting the
prosecution in Magistrates’ Courts. As per prevailing practice, in respect of cases initiated on
police reports, the prosecution is conducted by the APP and in cases initiated on a private
complaint; the prosecution is either conducted by the complainant himself or by his duly
authorized counsel.

c. Defense Counsel

As per Section 303, any person accused of an offence before a Criminal Court has a right to be
defended by a pleader of his choice. Such pleaders are not in regular employment of the state and
a paid remuneration by the accused person. Since, a qualified legal practitioner on behalf of the

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accused is essential for ensuring a fair trial, Section 304 provides that if the accused does not
have means to hire a pleader; the court shall assign a pleader for him at state’s expense.

At present there are several schemes through which an indigent accused can get free legal aid
such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board, and Supreme
Court Senior Advocates Fee Legal Aid Society. The Legal Services Authorities Act, 1987 also
provides free legal aid for the needy.

d. Prison Authorities

Cr. PC presumes the existence of Prisons and Prison authorities. The code empowers
magistrates and judges under certain circumstances to order the detention of under-trial prisoners
in jail during the pendency of proceedings. The code also empowers the courts to impose
sentences of imprisonment on convicted persons and to send them to prison authorities.
However, the code does not make specific provisions for creation and administration of prison
authorities. These matters are dealt with in separate acts such as The Prisons Act 1894, The
Prisoners Act, 1900, and the Probation of Offenders Act 1958.

4.1 Classes of Criminal Courts

Besides the High Courts and the Courts constituted under any law, other than this Code, there
shall be, in every State, the following classes of Criminal Courts, namely:
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.

4.2 Territorial Divisions

(1) Every State shall be a sessions division or shall consist of sessions divisions; and
every sessions division shall, for the purposes of this Code, be a district or consist of districts:
Provided that every metropolitan area shall, for the said purposes, be a separate sessions
division and district.

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(2) The State Government may, after consultation with the High Court, alter the limits or the
number of such divisions and districts

(3) The State Government may, after consultation with the High Court, divide any district into
sub-divisions and may alter the limits or the number of such sub-divisions.(4) The sessions
divisions, districts and sub-divisions existing in a State at the commencement of this
Code, shall be deemed to have been formed under this section.

4.3 Metropolitan Areas

(1) The State Government may, by notification, declare that , as from such date as may be
specified in the notification, any area in the State comprising a city or town whose population
exceeds one million shall be a metropolitan area for the purposes of this Code.

(2) As from the commencement of this Code, each of the Presidency-towns of Bombay, Calcutta
and Madras and the city of Ahmedabad shall be deemed to be declared under sub-section
(1) to be a metropolitan area.

(3) The State Government may, by notification, extend, reduce or alter the limits of a
metropolitan area but the reduction or alteration shall not be so made as to reduce the population
of such area to less than one million.

(4) Where, after an area has been declared, or deemed to have been declared to be, a
metropolitan area, the population of such area falls below one million, such area shall, on
and from such date as the State Government may, by notification, specify in this
behalf, cease to be a metropolitan area; but notwithstanding such cesser, any inquiry,
trial or appeal pending immediately before such cesser before any Court or Magistrate in
such area shall continue to be dealt with under this Code, as if such cesser had not taken place.

(5) Where the State Government reduces or alters, under sub-section (3), the limits of
any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or
appeal pending immediately before such reduction or alteration before any Court or
Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under this
Code as if such reduction or alteration had not taken place.

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Explanation.-In this section, the expression "population" means the population as ascertained at
the last preceding census of which the relevant figures have been published.

4.4 Court of Session

(1)The State Government shall establish a Court of Session for every sessions division.

(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges
to exercise jurisdiction in a Court of Session.

(4) The Sessions Judge of one session’s division may be appointed by the High Court to be also
an Additional Sessions Judge of another division and in such case he may sit for the disposal of
cases at such place or places in the other division as the High Court may direct.

(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for
the disposal of any urgent application which is, or may be, made or pending before such Court of
Session byan Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant
Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or
Magistrate shall have jurisdiction to deal with any such application.

(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court
may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion
that it will tend to the general convenience of the parties and witnesses to hold its sittings at any
other place in the sessions division, it may, with the consent of the prosecution and the accused,
sit at that place for the disposal of the case or the examination of any witness or witnesses
therein.

Explanation.- For the purposes of this Code, "appointment" does not include the first
appointment, posting or promotion of a person by the Government to any Service, or post in
connection with the affairs of the Union or of a State, where under any law, such appointment,
posting or promotion is required to be made by Government.

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4.5 Subordination of Assistant Sessions Judge
(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they
exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the
distribution of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for the disposal of any urgent application, in the
event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there
be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such
Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application

4.6 Courts of Judicial Magistrates

(1) In every district (not being a metropolitan area), there shall be established as many Courts of
Judicial Magistrates of the first class and of the second class, and at such places, as the State
Government may, after consultation with the High Court, by notification, specify.

(2) The presiding officers of such Courts shall be appointed by the High Court.

(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the
powers of a Judicial Magistrate of the first class or of the second class on any member of the
Judicial Service of the State, functioning as a Judge in a Civil Court.

4.7 Chief Judicial Magistrate and Additional Chief Judicial Magistrates

(1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial
Magistrate of the first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional
Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief
Judicial Magistrate under this Code or under any other law for the time being in force as the
High Court may direct.
(3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub-
division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified
in this section as occasion requires.
(b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial
Magistrate shall also have and exercise, such powers of supervision and control over the work of

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the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as
the High Court may, by general or special order, specify in this behalf.

4.8 Special Judicial Magistrates

(1) The High Court may, if requested by the Central or State Government so to do, confer upon
any person who holds or has held any post under the Government, all or any of the powers
conferred or conferrable by or under this Code on a Judicial Magistrate of the second class, in
respect to particular cases or to particular classes of cases or to cases generally, in any district,
not being a metropolitan area:
Provided that no such power shall be conferred on a person unless he possesses such
qualification or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such
term, not exceeding one year at a time, as the High Court may, by general or special order,
direct.

4.9 Local Jurisdiction of Judicial Magistrates

(1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to
time, define the local limits of the areas within which the Magistrates appointed under section 11
or under section 13 may exercise all or any of the powers with which they may respectively be
invested under this Code.

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such
Magistrate shall extend throughout the district.

4.10 Subordination of Judicial Magistrates

1. Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other
Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to
the Chief Judicial Magistrate.
(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Judicial Magistrates
subordinate to him.

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4.11 Courts of Metropolitan Magistrates
(1) In every metropolitan area, there shall be established as many Courts of Metropolitan
Magistrates, and at such places, as the State Government may, after consultation with the High
Court, by notification, specify.

(2) The presiding officers of such Courts shall be appointed by the High Court.

(3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the
metropolitan area.

4.12 Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrates

(1) The High Court shall, in relation to every metropolitan area within its local jurisdiction,
appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan
area.

(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief
Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief
Metropolitan Magistrate under this Code or under any other law for the time being in force as the
High Court may direct.

4.13 Special Metropolitan Magistrates

(1) The High Court may, if requested by the Central or State Government so to do, confer upon
any person who holds or has held any post under the Government, all or any of the powers
conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to
particular cases or to particular classes of cases or to cases generally, in any metropolitan area
within its local jurisdiction:
Provided that no such power shall be conferred on a person unless he possesses such
qualification or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for
such term, not exceeding one year at a time, as the High Court may, by general or special order,
direct.

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(3) Notwithstanding anything contained elsewhere in this Code, a Special Metropolitan
Magistrate shall not impose a sentence which a Judicial Magistrate of the second class is not
competent to impose outside the Metropolitan area.

4.14 Subordination of Metropolitan Magistrates

(1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall
be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to
the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code, define the extent of the subordination, if
any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Metropolitan Magistrates
and as to the allocation of business to an Additional Chief Metropolitan Magistrate.

4.15 Executive Magistrates

(1) In every district and in every metropolitan area, the State Government may appoint as many
persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the
District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an Additional district
Magistrate, and such Magistrate shall have all or any of the powers of a District Magistrate under
this Code or under any other law for the time being in force.
(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer
succeeds temporarily to the executive administration of the district, such officer shall, pending
the orders of the State Government, exercise all the powers and perform all the duties
respectively conferred and imposed by this Code on the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub-division and
may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a
sub-division shall be called the Sub-divisional Magistrate.

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(5) Nothing in this section shall preclude the State Government from conferring, under any law
for the time being in force, on a Commissioner of Police, all or any of the powers of an
Executive Magistrate in relation to a metropolitan area.

4.16 Special Executive Magistrates

The State Government may appoint, for such term as it may think fit, Executive Magistrates, to
be known as Special Executive Magistrates for particular areas or for the performance of
particular functions and confer on such Special Executive Magistrates such of the powers as are
conferrable under this Code on Executive Magistrates, as it may deem fit.

4.17 Local Jurisdiction of Executive Magistrates

(1) Subject to the control of the State Government, the District Magistrate may, from time to
time, define the local limits of the areas within which the Executive Magistrates may exercise all
or any of the powers with which they may be invested under this Code.

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such
Magistrate shall extend throughout the district.

4.18 Subordination of Executive Magistrates

(1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate
to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional
Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional
Magistrate, subject, however, to the general control of the District Magistrate.

(2) The District Magistrate may, from time to time, make rules or give special orders, consistent
with this Code, as to the distribution of business among the Executive Magistrates subordinate to
him and as to the allocation of business to an Additional District Magistrate.

5. Public Prosecutors

(1) For every High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor for conducting, in such Court, any
prosecution, appeal or other proceeding on behalf of the Central or State Government, as the case
may be.

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(2) For every district the State Government shall appoint a Public Prosecutor and may also
appoint one or more Additional Public Prosecutors for the district.

(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of
names of persons who are, in his opinion, fit to be appointed as the Public Prosecutor or
Additional Public Prosecutor for the district.

(4) No person shall be appointed by the State Government as the Public Prosecutor or Additional
Public Prosecutor for the district unless his name appears on the panel of names prepared by the
District Magistrate under sub-section (3).

(5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public
Prosecutor under sub-section (1) or sub-section (2), if he has been in practice as an advocate for
not less than seven years.

(6) The Central Government or the State Government may appoint, for the purposes of any case
or class of cases, an advocate who has been in practice for not less than ten years, as a Special
Public Prosecutor.

5.1 Assistant Public Prosecutors

(1) The State Government shall appoint in every district one or more Assistant Public
Prosecutors for conducting prosecutions in the Courts of Magistrates.

(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be
appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the
District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge
of that case:

Provided that a police officer shall not be so appointed-

(a) if he has taken any part in the investigation into the offence with respect to which the accused
is being prosecuted; or

(b) if he is below the rank of Inspector

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6. Powers and Functions of Court

Courts by which offences are triable.- Subject to the other provisions of this Code.-

(a) Any offence under the Indian Penal Code(45 of 1860) may be tried by –

(i) The High Court, or

(ii) The Court of Session, or

(iii) Any other Court by which such offence is shown in the First Schedule to be triable;

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such
law, be tried by such Court and when no Court is so mentioned, may be tried by-

(i) The High Court, or

(ii) Any other Court by which such offence is shown in the First Schedule to be triable.

Jurisdiction in the case of juveniles:-

Any offence not punishable with death or imprisonment for life, committed by any person who at
the date when he appears or is brought before the Court is under the age of sixteen years, may be
tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the
Children Act, 1960,(60 of 1960) or any other law for the time being in force providing for the
treatment, training and rehabilitation of youthful offenders.

Sentences which High Courts and Sessions Judges may pass.-

(1) A High Court may pass any sentence authorized by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorized by law; but
any sentence of death passed by any such Judge shall be subject to confirmation by the High
Court.

(3) An Assistant Sessions Judge may pass any sentence authorized by law except a sentence of
death or of imprisonment for life or of imprisonment for a term exceeding ten years.

Sentences which Magistrates may pass.-

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(1) The Court of a Chief Judicial Magistrate may pass any sentence authorized by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven
years.

(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term
not exceeding three years, or of fine not exceeding five thousand rupees, or of both.

(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term
not exceeding one year, or of fine not exceeding one thousand rupees, or of both.

(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief
Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a
Magistrate of the first class.

2. ARREST

The code contemplates two types of arrests

i) arrest made in pursuance of a warrant issued by a magistrate, and

ii) arrest made without such a warrant but made in accordance with some, legal provision
permitting such an arrest.

Arrest without warrant by police (Section-41): There might be circumstances where prompt and
immediate arrest is necessary and there is no time to approach a magistrate to obtain a warrant.
Cases where a police officer may arrest such persons are specified in Schedule-I of the code, and
Section-41 also enumerates nine categories -

a) who has been concerned in any cognizable offence, or against whom a reasonable complaint
has been made, or credible information has been received, or a reasonable suspicion exists in this
regard.

b) who is found in possession of any implement of house-breaking without any "lawful excuse

c) who has been proclaimed as an offender, either under the code or by order of the State
Government.

18
d) who is found in possession of property reasonably suspected to he stolen, and who may be
reasonably suspected of having committed an offence with reference to such property.

e) who obstructs a police officer in the discharge of his duties or who has escaped or attempts to
escape from lawful custody.

f) who is reasonably suspected of-being a deserted from any of the Armed Forces of the Union.

g) who has been concerned or reasonably suspected to be concerned in any act committed at a
place outside India which if committed in India would be punishable as an offence for which he
would be liable to be apprehended or detained in custody in India.

h) who is a released convict committing a breach of any rule made under section-356(5) of the
code.

i) for whose arrest any requisition (written or oral) is received from another police officer
competent to arrest that person without a warrant, provided that the requisition specifies the
person to be arrested and the offence or other cause for which the arrest is to be made.

In addition, a police officer in charge of a police station may, as a preventive measure, arrest
without warrant any person belonging to one or more of the categories of persons specified in
Section-109 or Section-110.

Arrest on refusal to give name and address (Section-42): A police officer may arrest without a
warrant any person who, in the presence of such an officer, has committed or has been accused
of committing a non-cognizable offence and either refuses to give his name and address or gives
false information. After ascertaining her right name and address the arrestee shall be released
after executing a bond (with/without sureties) before a magistrate if so required.

Arrest by private persons (Section-43): A private person can arrest any person, who has in his
presence, committed a non-bailable and cognizable offence, or any person who is a proclaimed
offender e must, without unnecessary delay, make over such person to a police officer/nearest
police station.

Arrest by magistrate (Section-44): Any magistrate (Executive/Judicial) may arrest a person

without a warrant. When any offence is committed in his presence, within his jurisdiction, he

19
may arrest or order any person to arrest the offender and also to commit him to custody (subject
to bail provisions).

A magistrate arresting a person should not try the case himself.

Protection of members of the armed forces from arrest (Section-45): Notwithstanding

anything contained in Sections-41 to 44 (both inclusive), no member of the armed forces of the
Union shall be arrested for anything done or purported to be done by him in the discharge of his
official duties except after obtaining the consent of the Central Government.

Arrest how made (Sections-46 to 49, 55 and 60): This section describes the mode in which
arrest is to be made (whether with/without a warrant). In making an arrest the police officer/other
person making the same actually touches or confines the body of the person to be arrested unless
by a submission to custody by word or action. The person making an arrest may use all means
necessary to make the arrest if the person to be arrested resists or attempts to evade the arrest.
The person to use necessary force for making an arrest shall not extend to causing the death of a
person who is not accused of an offence punishable with death or imprisonment for life.

Where fire was opened to disperse an unlawful assembly and death of an innocent person was
caused, Section-46 could not be invoked for the protection of the police officer. (Karan Singh v
Haradayal Singh 1979 Cr LJ 1211 (Punj)

In occupier of a house/place is under a legal duty to afford to the police, and to any person acting
under a warrant of arrest, all reasonable facilities to search the house/place for the purpose of
making arrests ingress to such a place cannot be easily obtained, the police officer (or other
person executing a arrant) can also break and open any door or window of such house/place for
the purpose of entering the same and search therein. If any apartment is in the actual occupancy
of a pardanashin lady, the lice officer must before entering the apartment give notice to the lady
to withdraw there from, and only - thereafter, he can break open the apartment and enter it.

Pursuit of offenders into other jurisdiction (Section-48): A police officer may, for the purpose
of arresting without warrant any person whom he is authorized to arrest, persue such a person to
any ace in India.

20
No unnecessary restraint (Section-49): The person arrested shall not be Subjected to more
restraint is a necessary to prevent his escape.

Power to require subordinate officer to arrest (Section-55): Where any officer-in-charge of a

police station or any police officer investigating requires on officer subordinate to him to arrest
without a warrant any person, he shall deliver to the officer required to make the arrest an order
in writing specifying the person to be arrested and the offence/other cause for which the arrest is
to be made.

Power on escape, to pursue and retake (Section-GO): If a person in lawful custody escapes or is
rescued, the person from whose custody he escaped or was rescued may immediately pursue and
arrest him in any place in India.

After Arrest procedures (Sections-51 to 53, 58 to 59) : Whenever a person who is arrested
cannot legally be admitted to bail, or is unable to furnish bail, the police officer making the arrest
may search such a person and place in safe custody all articles, other than necessary wearing-
apparel, found upon him. A receipt showing the articles so seized shall be given to such a person.

Seizure of offensive weapons (Section-52): The police officer or other person making an arrest
may take from the person arrested any offensive weapons which he has about his person, and
shall deliver all weapons so taken to the court or officer before which or whom the arrested
person is to be produced.

Medical examination of accused (Section-53): If the offence with which the accused person is
charged is of such a nature and is alleged to have been committed under such circumstances that
the evidence as to the commission of the offence would be afforded by the medical examination
of such an arrested person, then at the instance of a police officer (not below the rank of a sub-
inspector) an examination could be made by a registered medical practitioner in order to
ascertain the facts that might afford such evidence. If the person to be examined is a woman the
examination shall be made by, or under the supervision of a registered lady medical practitioner.

It may include testing of blood, hair, sputum, semen, urine etc. and taking of X-Ray or ECG
depending upon the nature of the case.

21
Police to report apprehensions (Section-58): Every officer in charge of a police station is
required to report to the D.M. the cases of all persons arrested without warrant, within the limits
of his station whether such persons have been admitted to bailor otherwise.

Discharge of person apprehended (Section-59): Any person who has been arrested by a police
officer shall be discharged only on his own bond, or on bail, or under the special order of a
magistrate.

Rights of arrested person: The police have been given various powers for facilitating the making
of arrests; the powers are subject to certain restraints. These restraints are primarily provided for
the protection of the interests of the person to be arrested and also the society at large. The
Constitution of India also recognizes the rights of arrested person under the Fundamental Rights.

a) Right to know the grounds of arrest (Section-50): The first and foremost requirement of
lawful arrest is the notification of the reasons of arrest along with the charges. The person
arrested without any warrant should forthwith be intimated the full particulars of the offence and
the grounds for his arrest by the police officer or other person making the arrest, and where the
offence is a bailable one, of his right to be released on bail.

It may be noted that when a person is arrested with a warrant, the police officer executing the
warrant of arrest shall notify the substance thereof (Section-75).

Further, when a subordinate officer is deputed by a senior police officer to arrest a person, such
subordinate police officer shall before making the arrest, notify to the person to be arrested the
substance of the written order given by the senior police officer specifying the offence or other
cause for which the arrest is to be made.

Apart from these provisions the constitution also provides that no person who is arrested shall be
detained in custody without being informed as soon as may be, of the grounds for such arrest.
[Article- 22(1)]

The information enables him to move the proper court for bail on in appropriate circumstances
for a writ of habeas, or to make expeditious arrangements for his defence. It appears reasonable
to expect that the grounds of arrest should be communicated to the arrested person in the

22
language understood by him, otherwise it would not amount to sufficient compliance with the
constitutional requirement (Harikishan v State of Maharashtra AIR 1962 SC 911)

b) Right to be taken before a magistrate without delay: Whether the arrest is made without
warrant by a police officer, as whether the arrest is made under a warrant by any person, the
person making the arrest must bring the arrested person before a judicial officer: without
unnecessary delay. It is also provided that the arrested person should not be confined in any
place other than a police station before he is taken to the magistrate. (Sections-56, 76)

c) Right of not being detained for more than 24 hours without judicial scrutiny (Section-
57): A person (arrested without warrant) detained in custody must be presented before the
nearest magistrate within twenty four hours of his arrest under section-167 of the code. The
period of 24 hours does not include the time necessary for the journey from the place of arrest to
the magistrate's court.

If a police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention Sharifbal v Abdul Razak AIR 1961 Born
42).

d) Examination by medical practitioner (Section-54) : The arrestee has a right to be medically

examined to enable him to defend and protect himself property when he is produced before a
magistrate or at any time when he is under custody, with a view to enabling him to establish-that
the offence with which he is charged was not committed by him or that any other person
committed any offence against his body.

The magistrate may reject the request of the arrested person if he considers that the request is
made for the purpose of vexation or delay or for defeating the ends of justice.

The arrested accused person must be informed by the magistrate about his right to be medically
examined (Sheela Barse v State of Maharashtra 1983 SCC (Cri) 353).

e) Right to consult a legal practitioner: The constitution as well as the code recognizes the right
of every arrested person to consult a legal practitioner of his choice (Article-22(1), Section-303).
The right begins from the moment of arrest (Moti Bai v State AIR 1954 Raj 241).

23
The consultation with the lawyer may be in the presence of police officer but not within his
hearing.

3. BAIL

The object of arrest and detention of the accused person is primarily to secure his appearance at e
time of trial and to ensure that in case he is found guilty he is available to receive the sentence. If
is presence at the trial could be reasonably ensured otherwise than by his arrest and detention, it
would be unjust and unfair to deprive him of his liberty during the pendency of criminal
proceedings against him.

Bail is one of the cherished rights, claims or privileges of an accused person. It is one of the most
dignified institutions in any civilized society in which human values, such as faith and trust, take
precedence ever= everything else.

Definition: Bail has not been defined under the code though bailable and non bailable offence
have been defined. It is defined in the Law Lexicon as security for the appearance of the accused
person on giving which, he is released pending trial or investigation. Bail is to procure the
release of a person from legal custody, by undertaking that he shall appear at the time and place
designated and submit himself to the jurisdiction and judgment of the court. The Supreme Court
has held that bail covers both releases on one's= own bond, with as without sureties Moti Ram v
State of M.P(1978) 4 SCC 47.

If a person accused of a bailable offence is arrested or detained without warrant he has a right to
be released on bail. But if the offence is non bailable that does not mean that the person accused
of such offence shall not be released on bail, but here in such a case bail is not a matter of right,
but only a privilege to be granted at the discretion of the court.

In what cases bail to be taken (436): This Section makes provisions for bail of a person who is
accused of any offence other than non-bailable offence. A person shall be released on bail if-

1. he has been arrested or detained without warrant by an officer-in-charge of a police station; or

2. he appears or is brought before a court, and

24
3. he must be prepared at any time while in the custody of such officer or at any stage of the
proceeding before court to give bail.

An indigent person may be discharged on executing a bond without sureties. The power of
magistrate to grant bail does not depend upon his competence to try the case but on the
punishment prescribed for the offence Aftab Ahmad v State of U.P 1990 Cr LJ 1663 (All)

It is a mandatory provision and magistr3te is bound to release the person on bail. Bail means
release of a person from legal custody.

An executive magistrate has no jurisdiction to grant bail except in respect of offences punishable
with fine or imprisonment up to three months.

Other mandatory bail provisions:

1. Where the accused has completed 60 or 90 days in detention and there is no formal charge
sheet framed against him, he can be released on bail. (Section-167(2)

2. If there is no reasonable grounds for believing that the accused is guilty of a non-bailable
offence but there is sufficient ground for further inquiry. (Section-437(2)

3. If the trial of a non-bailable offence is not concluded within a period of 60 days from the first
date fixed for taking evidence in the case and such person is in custody during the whole of the
period. [Section- 436(6)].

4. If at any time after the conclusion of the trial of a person accused of a non-bailable offence and
before judgment is delivered, the court is of opinion that these are reasonable grounds for
believing that the accused is not guilty of any such offence.

Cases of non-bailable offence (Section-437): When any person accused of or suspected of the
commission of any non-bailable offence is arrested on detained/or appears or is brought before a
court (other than the High Court/Court of Session), he may be released on bail, buta. such person
shall not be released if there appear reasonable grounds for believing that he has been guilty of
an offence punishable with death or life imprisonment;

25
b. if such offence is a cognizable offence and he had been previously convicted of an offence
punishable with death, life imprisonment or imprisonment for 7 years or more, or he had been
previously convicted on two or more occasions of a non bailable and cognizable offence.

But a person (i) under the age of 16 years or (ii) a woman, or (iii) a sick (iv) infirm person may
be released on bail even if the offence charged is punishable with death on imprisonment for life
or the accused is previously convicted.

Grant of bail with condition:

a. where the offence is punishable with imprisonment (7 years or more);

b. where the offence is against the State, human body, or property (I.P.C.)

c. where the offence is one of the abetment of, or conspiracy to or attempt to commit any such
offence as mentioned.

Guidelines while granting bail:

2) the character of the accused;

3) circumstances which are peculiar to the accused;

4) a reasonable possibility of the presence;

5) reasonable apprehension of witnesses being tampered with;

6) the large interest of the public or the state.

Anticipatory bail (Section-438) : The term anticipatory bail implies a direction to release a
person on bail issued even before the person is arrested, though in fact it is a misnomer.
Manifestly there is no question of release on bail unless a person is arrested, and therefore, it is
only on arrest that the order granting anticipatory bail becomes operative. The distinction
between an ordinary order of bail and an order of anticipatory bail is that whereas the former is
granted after arrest means release from the custody of the police, the latter is granted in
anticipation of arrest and is therefore effective at the very moment of arrest.

26
The rationale behind anticipatory bail is that individual liberty must not be put in jeopardy on the
instance of irresponsible persons. This section Iays down-

1) When any person has reason to believe that he may be arrested on an accusation of having
committed a non-bailable offence, he may apply to the H.C./Court of Session for a direction and
that court, if it thinks fit, direct that in the event of such arrest, be released on bail.

2) The court makes direction subject to condition-

1. the person shall make himself available for police interrogation as and when required.

2. the 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/police officer.

3. the person shall not leave India without court's permission.

3) If such person is thereafter arrested without warrant on such accusation, a1ld is prepared either
at the time of arrest or at any time while in the custody of police to give bail, he shall be released.

Anticipatory bail cannot usually be granted during the pendency of investigation.

Special powers of High Court or Court of Session regarding bail (Section-439): The High
Court or Court of Session can issue a direction that any person accused of an offence and in
custody should be released on bail. If the offence is of the nature specified in 437(3), it can direct
that any condition imposed by a magistrate when releasing any person on bail be set aside or
modified.

Cancellation of bail: The power to cancel bail has been given to the court and not to a police
officer.

Secondly, the court which granted the bail can alone cancel it. The bail granted by a police
officer cannot be cancelled by the court of a magistrate. For cancellation of the bail in such a
situation, the powers of the High Court or Court of Session will have to be invoked.

At the present stage of civilization, it has been universally accepted as a human value that a
person accused of any offence should not be punished unless he has been given a fair trial and

27
his guilt has been proved in such trial. The major attributes of fair criminal trial are enshrined in
Article-10 and 11 of the Universal Declaration of Human Rights.

4. INFORMATION TO THE POLICE AND THEIR POWER TO INVESTIGATE

The principal agency for carrying out the investigations of offences is the police, and to make
this agency an effective and efficient instrument for criminal investigations, wide powers have
been given to the police officers. Investigation starts by two ways either by making a F.I.R. to a
police officer or by making a complaint to a Magistrate.

First Information Report (Section-154) : The term F.IR has no where been defined under Cr.P.C.
but the first information given to any police officer and reduced to writing of any cognizable
offence is considered as

F.IR. The information so received shall be recorded in such a form and manner as

1. The substance of the information shall be entered by the police officer in a book (C.D.) to be
kept by such an officer in the form prescribed by the State Government.

2. A copy of the information as recorded shall be given forthwith, free of cost, to the informant.

3. If the officer-in-charge refuses to record the information, the aggrieved person may send, in
writing and by post, the substance of such information to the Superintendent of Police. On being
satisfied about the commission of a cognizable offence, S.P. shall either investigate the case
himself or direct an investigation to be made by a subordinate police officer.

The principal object of FIR is to set the criminal law in motion.

When a statement amounts to F.I.R.: It has been held that first information is that information
which is given to the police first in point of time (on the basis of which the investigation has
been commenced) not that which the police may select and record as first information (Bhutnath
C WN 345)1

When a person reported to the police officer that he had seen a certain woman with her throat
cut, and the officer had not made a record of that fact, but subsequently treated an information
lodged by the man's father as first information in the case, held that the unrecorded information

28
was in fact the information, and not that given by the woman's father. (Patit Subba Reddy 37,
CrlJ 357)

It is worthwhile to emphasize here that information to have the status of first information report
under tion-154 must be information relating to the commission of a cognizable offence and it
must not vaguebut definite enough to enable the police to start investigation (Hasib v State of
Bihar 1972 (4) SCC 773).

Where an anonymous telephonic message did not disclose the names of the accused nor did it
disclose the commission of a cognizable offence, it was held that such a telephonic message
could not held as F.IR (Tapinder Singh v State 1970 (2) SCC113)

It is not necessary that the offender or the witness should be named.

Where F.I.R. is lodged: The general rule is that ordinarily the information about the offence
committed’s to be given to the police station having territorial jurisdiction where the offence has
been committed. But it does not mean that it cannot be lodged elsewhere.

In State of A.P. v Punati Ramube (1993 CrlJ 3684 (SC) the police constable refused to record
the complaint on the ground at the said police station had no territorial jurisdiction over the place
of crime. It was held by Supreme Court that refusing to record the complaint was a dereliction of
duty on the part of the constable because any lack of territorial jurisdiction could not have
prevented the constable from recording information about the cognizable offence and forwarding
the same to the police station having jurisdiction our the area in which the crime was said to have
been committed.
Object of F.I.R.: The object of insisting upon prompt lodging of the report to the police in respect
of mission of an offence is to obtain early information regarding the circumstances in which the
crime was committed.

Delay results in embellishment and the report gets bereft of the advantage of spontaneity. There
is also danger of introduction of a coloured version, exaggerated account or concocted stray as a
result of deliberation and consultation (Thulia Kali v State of Tamil Nadu AIR 1975 SC 501).

29
Tough the importance of FIR made promptly cannot be minimized the mere fact that it was
immediately made after the incident cannot rule out any embellishment in the version about the
incident given by the prosecution. (Tarachand v State of Haryana AIR 1971 SC 1821).

Where FIR was found to have been written after inquest report was prepared it was held to have
lost its authenticity (Balaka Singh v State of Punjab AIR 1975 SC 1962).

Where oral complaint disclosing commission of a cognizable offence has been made and police
investigation has started on its basis and later on a second report is made in writing it has been
held that written report has to be considered as statement under section-161 and not as FIR. It
cannot be for corroboration of evidence of informant. (Golla Jalla Reddy v State of A.P 2007CR
LJ, 3193 (SC).

Omissions in the F.I.R. whether justified: The word information means something in the nature
of a complaint or accusation, or at least information of a crime. The FI.R should contain
information regarding the circumstances of the crime, the names of actual culprits and the part
played by them as well as the names of eye-witnesses.

Sometimes witnesses do not think it proper to get some facts mentioned in the FI.R, but the
omission of important facts in an FI.R. Lodged by a witness to the occurrence must be taken
serious note of and would affect the veracity of the prosecution case. (Shyamaghana v State
1987, Crl J 952 (Ori).

FI.R. is required to contain basic features of the prosecution case, since it sets law into motion.

Importance of F.I.R-F.I.R. is important from much point of views. It is a statement made soon
after the occurrence, hence the memory of the informant is fresh and it is also unlikely that he
had opportunities of fabrication delay in giving information is, therefore, viewed with grave
suspicion (In Re Madivalappa AIR 1966 Mysore 142).

Evidentiary value of F.I.R- the FIR can be put in evidence (usually by the prosecution) when
the informant is examined, if it desirable to do so. However, FI.R is not a piece of substantive
evidence (evidence of facts stated therein) and it cannot be preferred to the evidence given by the
witness in court (George AIR 1960 Ker 142).

30
It can be used only for limited purposes, like corroborating (Section-157 Evidence Act) or
contradicting (cross examination Section-143 Evidence Act).

Obviously, the FI.R cannot be used for the purposes of corroborating or contradicting or
discrediting any witness other than the one lodging the F.I.R (George v State of Kerala 1998 Cr
LJ 2034 (SC)

The value of F.I.R will vary accordingly as it is based on information given by the complainant
or eyewitness to the crime or a mere stranger. However, its importance was not minimized just
because it was lodged by an unconcerned person.

Delay in filing F.I.R-criminal court attaches great importance to the lodging of prompt FI.R.
However, the mere fact that it has been lodged early does not rule out embellishment or
falsehood in every case (Tara Chand AIR 1981 SC 361)

Information in respect of non-cognizable offences (Section-155): When any information in

respect of non-cognizable offence is given to an officer-in:-charge of a police station, he must
enter the substance of the information in a book prescribed for this purpose, and refer the
information to the Magistrate.

The primary rule is that no police officer shall investigate a non-cognizable case without the
order of a competent Magistrate. On receiving the order he may exercise the same power as in a
cognizable case (except to arrest without warrant). Where a case relates to two or more offences
of which at least one is cognizable, the case shall be deemed to be a cognizable case.

If a Magistrate, who is not empowered, erroneously orders in good faith an investigation under
section- 155(2), the proceedings shall not be set aside merely on the ground of his not being so
empowered\ (Section-460(1)(b)

Police officer's power to investigate cognizable case (Section-156): The police are empowered
to investigate into a cognizable offence without order of a Magistrate or without a formal first
information report. If the police do not investigate the Magistrate can order the investigation.
(Abhayanand Jha v Dinesh Chandra AIR 1968 SC 196)

31
But if the police investigate, the magistrate cannot prevent them from investigation (S.N.
Sharma v Bipin Kumar Tiwari AIR 1970 SC 786)

If, however, the FIR or other relevant materials donot prima facie disclose any cognizable
offence, the police in that case have no authority to investigate. In such a case the High Court, in
the exercise of its inherent powers under section-482 or in the exercise of powers under section-
226 of the constitution can stop and quash such an investigation (State of WB. v Swapan Kumar
Guha 1982 SCC (Cri) 283).

When a complaint is filed before a magistrate, the magistrate instead of taking cognizance of the
offence, may simply order investigation by police under section-156(3)

One can briefly conclude that the process of investigation may start -

a) Where FIR is given under section-154.

b) Where police officer has otherwise reason to suspect the commission of a cognizable offence

[Section-157(1), Section-156(1)]

c) Where a competent Magistrate orders the police to investigate -

i) a non cognizable offence [Section-155(2)]

ii) by sending a complaint to the police under section-156(3) without taking cognizance of the
offence on a complaint under section-200.

iii) after taking cognizance of the offence on a complaint for the purpose of deciding as to the
issue of process against the accused Section-202(1) and Section-203.

Procedure for investigation (Section-157): This section provides the manner in which
investigation is to be conducted where the commission of a cognizable offence is suspected and
authorizes an officer-in-charge of a police station not to investigate if he considers that there is
no sufficient ground for such investigation. Further, this section requires that immediate
intimation of every complaint/information of the commission of cognizable offence shall be sent
to the Magistrate having jurisdiction (Om Prakash v State AIR 1974 SC 1983).

32
Magistrate's power to hold investigation on preliminary inquiry (Section-159): The Magistrate on
receiving a police report, may direct investigation, or if he thinks fit, himself proceed or depute a
Magistrate subordinate to him to proceed, to hold a preliminary inquiry into the case.

Section-159 does not confer upon the Magistrate a general power to direct investigation that
power is to be used when it appears from the police report under section-157 that the police are
neglecting their duties or are desisting from investigation on insufficient grounds.19

Police officer's power to require attendance of witnesses (Section-160): While investigating

into an offence, the police will ordinarily go to the persons who are acquainted with the facts and
circumstances of the case. But in certain cases the police may by a written order require the
attendance of such person either within the limits of his police station or adjoining police station.

But no male person under the age of 15 years or woman shall be required to attend at any place
other than their residence.

Where such person intentionally omits to attend, he is liable to be punished under section-174,
IPC.

Any State Government, if it so desires may make rules and provide for the payment by the police
officer of the reasonable expenses to every person attending as required at any place other than
such person's residence.

Examination of witnesses by police (Section-161): A police officer making investigation can

examine the witnesses and reduce them to writing if he wishes. This section does not authorize
beating or confining a person with a view to induce him to make a statement.

Such a person is required to answer truly all questions relating to the case put to him by the
police officer.

However he is not bound to answer such questions, the answers to which would have a tendency
to expose him to a criminal charge or to a penalty or forfeiture. If a person refuses to answer, he
can be punished under section-179, IPC and on a false answer under section-193 IPC. Statement
recorded by the investigating officer under section-161 cannot be used as substantive evidence
before court (Jadumani Khanda v State 1993, Cr LJ 2701 (Orissa)

33
Statements to police not to be signed: Use of statements in evidence (Section-162): No
statement made by any person to a police officer during investigation be signed by the person
making it, nor be used for any purpose, except when any witness is called for the prosecution in
such inquiry or trial to contradict such witness in the manner provided by Section-145 of the
Indian Evidence Act (1872)

A statement to a third person in the presence of a police officer is not within this section (Satya
Narayan v Emperor AIR 1944 Pat 67).

No inducement to be offered (Section-163): This section prohibits a police officer or a person

in authority from offering or making any inducement, threat or promise as is mentioned in
Section-24 of the Evidence

Act. But he shall not prevent, by any caution or otherwise, any person from making any
statement which he may be disposed to make of his own free will.

Recording of Confessions and Statements by Magistrate (Section-164): The F.I.R. recorded

under section-154 is of great importance, regarding the commission of a cognizable offence
before there is time to forget, fabricate or embellish. Similarly, the commission or statement
made by an accused person to the police soon after the occurrence would be highly valuable in
evidence. However, according to Section-25 of the Evidence Act and Section-162 of the code
virtually disallows the use of any confessional statement, made to a police officer during
investigation. By and large, the police are not as yet considered trustworthy.

Therefore, Section-164 provides a special procedure for the recording of confession by

competent magistrates (M.M./J.M.) after ensuring that the confessions are being made freely and
voluntarily, and are not made under any pressure or influence. No confession shall be recorded
by a police officer on whom any power of a Magistrate has been conferred.

The magistrate is bound to ask the person making the confession that he is not bound to make, if
he does, it may be used as evidence against him. And, if he is not willing to make it, the
magistrate shall not authorize his detention in police custody.

S 164A Medical examination of the victim of rape – (1) Where, during the stage when an
offence of committing rape or attempt to commit rape is under investigation, it is proposed to get

34
the person of the woman with whom rape is alleged or attempted to have been committed or
attempted, examined by a medical expert, such examination shall be conducted by a registered
medical practitioner employed in a hospital run by the Government or a local authority and in the
absence of a such a practitioner, by any other registered medical practitioner, with the consent of
such woman or of a person competent to give such consent on her behalf and such woman shall
be sent to such registered medical practitioner within twenty-four hours from the time of
receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without delay,
examine her and prepare a report of his examination giving the following particulars, namely:-

(I) the name and address of the woman and of the person by whom she was brought;

(II) the age of the woman;

(III) the description of material taken from the person of the woman for DNA profiling;

(IV) marks of injury, if any, on the person of the woman;

(V) general mental condition of the woman; and

(VI) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent
to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in
the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigation
officer who shall forward it to the Magistrate referred to in section 173 as part of the documents
referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the
consent of the woman or of any person competent to give such consent on her behalf.

35
Explanation. – For the purposes of this section, “examination” and “registered medical
practitioner” shall have the same meanings as in section 53

Search by police officer (Section-165): A police officer is authorized to make a search without
warrant if these conditions are exist-

1. Search is necessary for investigation.

2. The offence is cognizable.

3. Reasonable grounds exist for believing that the thing required will be found in a place.

4. There would be undue delay in getting the thing in any other way.

Search within the limits of another police station (Section-166): This Section authorizes an
officer in charge of a police station to have a search made within the limits of another station
(whether in the same district or not) through the officer-in-charge of that station.

In emergent cases, a search may be made by a police officer himself to a place within the limits
of another station, as if such place were within the limits of his own police station, if there is
reason to believe that delay might result in evidence of the commission of an offence being
concealed or destroyed.

Procedure on non-completion of investigation within 24 hours (Section-167): If any police

officer ants the custody of the accused for a longer period (more than 24 hours) for the purpose
of investigation, can do so only after obtaining a special order of a magistrate under section-167.

The Judicial magistrate to whom an accused person is so forwarded may, whether he has or has
not jurisdiction to try the case, from time to time, authorize the detention of the accused person
in such custody as the magistrate thinks fit, for a term not exceeding 15 days on the whole. If he
has no jurisdiction to try the case, and considers further detention unnecessary, he may order the
accused to be forwarded to a judicial magistrate having jurisdiction. If after 15 days, the
detention is necessary, the detention shall be in custody other than that of the police, and that the
total period of detention including e period of 15 days shall not exceed-

36
1) 90 days, where the investigation relates to an offence punishable with death, imprisonment for
life or imprisonment for a term of not less than 10 years, and

2) 60 days, where the investigation relates to any other offence.

In the absence of judicial magistrate, an accused is forwarded to an executive magistrate who is

authorized to grant the custody not exceeding 7 days.

Report of investigation by subordinate police officers (Section-168): Any subordinate officer

making investigation, shall report the result of such investigation to the officer-in-charge of the
police station.

Release of accused when evidence deficient (Section-169): If upon an investigation, it appears

to be officer-in-charge of the police station that there is no sufficient evidence or reasonable
ground of suspicion to justify the forwarding of the a9cused to a 'magistrate, he must release
such person from custody after executing a bond (with or without sureties) as the officer may
direct, to appear before a magistrate empowered to take cognizance of the offence on a police
report, and to try the accused or commit him for trial.

Cases to be sent to magistrate when evidence is sufficient (Section-170): If upon investigation

sufficient evidence exists, the accused shall be forwarded to a competent magistrate. If the
offence is available and he is ready to furnish, he should be released on bail.

Diary of proceedings in investigation (Section-172): This Section deals with what is known as a
police diary or a special diary, or case diary or a station house report. Every police officer
making an investigation shall enter his daily proceedings in a diary.

Report of police on completion of investigation (Section-173): Every investigation is required '0

be completed without unnecessary delay. As soon as it is completed, a report is to be submitted
to the magistrate empowered to take cognizance of the offence on a police report, in the form
prescribed by the State Government. The police report submitted is called Final Report. If the
report alleges the commission of a crime by an accused person, the report is commonly called the
charge-sheet or the challan.

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5. COGNIZANCE OF OFFENCE

Criminal law has always been most effective branch of the law which has helped in dealing with
most brutal of the crimes and has been there to protect the society from falling in the state of
anarchy. It consists of two branches known as substantive law and procedural law. While
substantive law defines the various kinds of offences and the punishment to be given to the
offenders, the procedural law is intended to provide a mechanism for the enforcement of the
substantive criminal law. In the absence of such a procedural law, the substantive law will be
rendered worthless as nobody would be able to chart out the way of prosecuting the offenders
and they will be let off. So it can be concluded that both the laws complement each other.

In the language of the Hon’ble Apex Court employed in its earliest decision (Ref: R.R.Chari v.
State of U.P) “taking cognizance does not involve any formal action or indeed action of any
kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of
offence”.

In India, the procedure to be followed for criminal proceedings is determined by the Code of
Criminal Procedure, 1973. It has a full section dedicated to the cognizance of offences by the
Magistrates and has also dealt with the restrictions placed on his power of cognizance regarding
certain offences. These sections explain in detail the persons who are authorized to make a
complaint with regard to any offence against marriage and a Magistrate can take cognizance of
the offence only if those certified persons are the complainants. He is not empowered to take suo
moto cognizance of these offences unless there is a grave and sudden need to take action. In this
project, researcher will be discussing about various the power of Magistrate to take cognizance
of various offences and then he will be discussing about the restrictions placed on him under S.
198 & 198A of the code. Then he will be dealing with to the viability of these restrictions and
will be analyzing if these restrictions have been useful and have served their purpose or have
they been a deterrent for the police and the victims on their way to achieve justice and
prosecuting the perpetrators of various marriage related offences.

Scope of Cognizance of Offences by Magistrate

Any Magistrate of the first class and any magistrate of the second class may take cognizance of
any offence. Section 190- 199 of the code describe the methods by which, and the limitations

38
subject to which, various criminal courts are entitled to take cognizance of offences. Section
190(1) provides that, subject to the provisions of S. 195-199, any magistrate of the first class and
any magistrate of the second class especially empowered in this behalf, may take cognizance of
any offences-

a) Upon receiving a complaint of facts which constitute such offence.

b) Upon a police report of such facts.

c) Upon information received from any person other than a police officer, or upon his own
knowledge, that such an offence has been committed.

S. 190(2) – The Chief Judicial Magistrate may specially empower any magistrate of the second
class as mentioned to take cognizance of such offences as are within his competence to inquire
into or try. The term complaint has been defined in S. 2(d) as meaning: ‘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.’ It also explain that A report made by a police officer in a case which disclose, 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 complaint. In the
case of P. Kunhumuhammed v. State of Kerala it was said: the report of a police officer
following an investigation contrary to S. 155(2)[3] could be treated as complaint under S. 2(d)
and S. 190(1)(a) if at the commencement of the investigation the police officer is led to believe
that the case involved the commission of a cognizable offence or if there is a doubt about it and
investigation establishes only commission of a non- cognizable offence. If at the commencement
of the investigation it is apparent that the case involved only commission of a non-cognizable
offence, the report followed by the investigation cannot be treated as a complaint under S. 2(d) or
190(1)(a) of the Code. The expression ‘police report’ has been defined by S. 2(r) as meaning “a
report by a police officer to a magistrate under S. 173(2)” i.e., the report forwarded by the police
after the completion of investigation.

Ajit Kumar Palit v. State of W.B.: What is taking cognizance has not been defined in the Code.
The word ‘cognizance’ has no esoteric or mystic significance in Criminal Law or procedure. It

39
merely means ‘become aware of’ and when used with reference to a court or judge. ‘to take
notice judicially’.

If cognizance is to be taken on a police report under S. 190(1)(b) the report must be one as
defined in S. 2(r). That is the report must be one forwarded by a police officer to a magistrate
under S. 173(2) and not any other report like preliminary report or an incomplete challan. And it
is for the magistrate to decide whether the police report is complete. His power cannot be
controlled by the investigating agency. On receiving police report the magistrate may take
cognizance of the offence under S. 190(1) (b) and straightaway issue process. This he may do
irrespective of the view expressed by the police in their report whether an offence has been made
out or not. The magistrate has not to proceed mechanically in agreeing with the opinion formed
by the police, but has to apply his mind and persue the papers placed before him. He has to apply
his mind to all the details embodied in the police report and to other documents and papers
submitted along with the report. It may be noted that the magistrate takes cognizance of the
offences and not the offender. The magistrate is not bound by the conclusion drawn by the police
and it is open to him to take cognizance of an offence under S. 199(1)(b) on the basis of the
police report even though the police might have recommended in their report that there were was
no sufficient ground for proceeding further or that it was not a fit case where cognizance should
be taken by the magistrate. It has been ruled that the magistrate can take cognizance of an
offence if he is satisfied about the material.

According to S. 190(1)(c) the magistrate can take cognizance of any offence upon the
information received from any person other than a police officer or upon his knowledge. The
object is to enable magistrate to see that justice is vindicated notwithstanding that the persons
individually aggrieved are willing or unable to prosecute. Hence the proper use of the power
conferred by this provision is to proceed under it when the magistrate has reason to believe the
commission of a crime but is unable to proceed ordinary way owing to absence of any complaint
or police report about it. Therefore the word ‘knowledge’ as used in the clause (c) should be
interpreted rather liberally so as to subserve the real object of the provision. It has been opined
that if a magistrate takes action under S. 190(1)(c) without having jurisdiction then such trial
would be vitiated.

40
S. 190 provide that under the condition specified in the section certain magistrate ‘may’ take
cognizance of offences. There are varying opinions of the Courts on this point. Considering the
observation of the Supreme Court in this connection it may be fairly concluded that ‘a magistrate
has certain discretion but it must be judicial in nature, it is limited in scope’. And taking
cognizance does not depend upon the presence of the accused in the court. In fact he does not
have any role at this stage. There is no question of giving him a hearing when final report of the
police is considered. Nor does refusal to take cognizance of an offence leads to discharge of the
accused. It may be noted that a magistrate can take cognizance of any offence only within the
time-limits prescribed by law. Even after the period of limitation such offences can be taken
cognizance of by the court if the delay is condoned prior to taking cognizance. The power to take
cognizance of an offence may not be confused with the power to inquire into or try a case.

Cognizance taken by a Magistrate not empowered

If any magistrate not empowered to take cognizance of an offence under S. 190(1)(a) and
190(1)(b), does erroneously in good faith take cognizance of an offence, his proceeding shall not
be set aside merely on the ground of his not being empowered.

Purshottam Jethanand v. State of Kutch : If a magistrate takes cognizance of an offence and

proceeds with a trial though he is not empowered in that behalf and convicts the accused, the
accused cannot avail himself of the defect and cannot demand that his conviction be set aside
merely on the ground of such irregularity, unless there is something on the record to show that
the magistrate had assumed the power, not erroneously and in good faith, but purposely having
knowledge that he did not have any such power. On the other hand if a magistrate who is not
empowered to take cognizance of an offence takes cognizance upon information received or
upon his own knowledge under S. 190(1)(c) his proceeding shall be void and of no effect. In
such a case it is immaterial whether he was acting erroneously in good faith or otherwise.
Transfer of Cases after taking Cognizance

This includes Transfer on application of the accused under S.191, Power of the Chief Judicial
Magistrate to transfer a case under S.192 (1) and Magistrate empowered to transfer a case under
S. 192(2) of Code of Criminal Procedure.

41
1. Transfer on application of the accused- when a magistrate takes cognizance of an offence
under clause (c) of subsection (1) of S. 190, 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.

2. Power of the Chief Judicial Magistrate to transfer a case- S. 192(1) provides that any chief
judicial magistrate may after taking cognizance of offence, make over the case for inquiry or trial
to any competent magistrate subordinate to him. The section enables the chief judicial magistrate
to distribute the work for administrative convenience. This section has conferred special power
on the CJM as normally the magistrate taking cognizance of the offence has himself to proceed
further as enjoined by the Code. But an exception has been made in the case of CJM, may be
because he has some administrative functions also to perform. The transfer can be ordered only
after taking cognizance by the transferring magistrate. The object of this section is that senior
magistrate may find it convenient to when a magistrate transfers a case under S.192, it is not an
administrative order. It is judicial order in as much as there should be application of mind by the
magistrate before he passes the order look at most of the cases in the first instance but after
taking cognizance send them for disposal to their subordinates.

3. Magistrate empowered to transfer a case- According to S. 192(2) “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.” This subsection enables the CJM to
clothe a first class magistrate with powers like his own under S. 192(1). This again is useful in
order to relieve the CJM of unnecessary burden.

Cognizance of Offences by Court of Session: 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 S. 193 of the Code. When an offence is exclusively triable by a court of session according
to S.26 read with the First Schedule the Magistrate taking cognizance of such offence is required
to commit the case for trial to the Court of Session after completing certain preliminary

42
formality. Sometimes the posts of CJM and ADJ are held by one individual. In such a case the
CJM was required to take cognizance and try economic offences. It was ruled that S. 193 did not
apply to that case. For proper distribution of the work in the court of session and for
administrative convenience, it has been provided that an Additional Session Judge or Assistant
Session Judge shall try such cases as the Sessions Judge of the division may, by general or
special order, make over to him for trial or as the High Court may, by special order, direct him to
try under S.194 of the Code.

Limitation on the Power to take Cognizance: Sections 195-199 are exceptions to the general
rule that any person having knowledge of the commission of an offence, may set the law in
motion by a complaint, even though he is not personally interested or affected by the offence.
The general rule is that any person having knowledge of the commission of an offence may set
the law in motion by a complaint even though he is not personally interested in, or affected by
the offence. To this general rule, Sections 195 to 199 of Cr. P.C. provide exceptions, for they
forbid cognizance being taken of the offences referred to therein except where there is a
complaint by the Court or the public servant concerned. The provisions of these sections are
mandatory and a Court has no jurisdiction to take cognizance of any of the offences mentioned
therein unless there is a complaint in writing as required by the section concerned. There is
absolute bar against the Court taking cognizance of the case under Section 182 of IPC except in
the manner provided in Section 195 of Cr.P.C. Where the complaint is not in conformity with the
provisions of this section, the Court has no power even to examine the complainant on oath
because such examination could be made only where the Court has taken cognizance of the case.
The absence of complaint as required by the section is fatal to the prosecution and it is an
illegality which vitiates the trial and conviction.

The Supreme Court, in Bashir-ul-Haq v. State, held that Section 195 of Cr.P.C. requires that
without a written complaint of the public servant concerned no prosecution for an offence under
Section 182, IPC can be launched nor any cognizance of the case taken by the Court.

Since Section 195 and the succeeding four sections i.e., Sections 196, 197, 198 & 199 impose
restrictions on the power of Magistrate to take cognizance of offence under Section 190,
therefore, at the stage of taking cognizance of an offence, the Magistrate should make sure
whether his power of taking cognizance of the offence has or has not been taken away by any of

43
the clauses of Sections 195-199 of the Code. Any person may set the criminal law in motion by
filing a complaint even if he is not personally affected by the offence committed. However,
certain restrictions or limitations have been imposed on the wider powers of the magistrate’s
power to take cognizance under S. 190 of the code and these restrictions have been placed under
S. 195-199 of CrPC. Sub-section 1(a) of Section 195 provides that no Court shall take
cognizance of any offence punishable under Sections 172 to 188, IPC or of abetment or attempt
or criminal conspiracy to commit such offence. Sections 172-188, IPC relate to offence of
contempt of lawful authority of public servants, for example absconding to avoid service of
summons, preventing service of summons, not producing a document when so required by a
public servant, knowingly furnishing false information, refusing to take oath etc.

The provision of Section 195(1)(a) being mandatory, any private prosecution in respect of the
said offences is totally barred. Only the concerned public servants can make a complaint and
initiate proceedings in respect of these offences. The power to make the complaint can be
exercised only by the public servant who is for the time being holding the office or is a
successor-in-office of the public servant whose order is disobeyed or lawful authority
disregarded and thus an offence under Sections 172 to 188, IPC has been committed. The bar or
limitation imposed by sub-section 1(a) of Section 195 equally extends to both cognizable as well
as non-cognizable offences. It may be noted that all the offences covered by Sections 172 to 188
of IPC except the one under Section 188, are non-cognizable offences. It may be noted that
Section 195 being mandatory taking cognizance of any offence referred to therein without a
proper complaint by the concerned public servant would be an illegality which cannot be cured
by Section 465 of Cr.P.C. Clause (b) of Section 195(1) relates to prosecution for offences against
public justice. No Court shall take cognizance of any such offence or of attempt or abetment or
of any criminal conspiracy to commit any such offence, when such offence is alleged to have
been committed in, or relation to, any proceeding in any Court, except on a complaint in writing
of that Court or of some other Court to which that Court is subordinate.

The Supreme Court, in Santosh Singh v. Izhar Hussain, observed that every incorrect or false
statement does not make it incumbent upon the Court to order prosecution. The Court should
exercise judicial discretion taking into consideration all the relevant facts and circumstances. It

44
should order prosecution in the larger interest of justice and not gratify the feelings of personal
revenge or vindictiveness or serve the ends of a private party.

The Supreme Court in Sachidanand Singh v. State of Bihar, has clarified that a prosecution for
the offence of forgery would be possible under Section 195 (1) (b) (ii) only where the forgery
was committed while the document was in custody of Court, i.e., custodia legis, but mere
production of the document would not attract the bar of this section and in that case prosecution
may be launched by any person.

Section 195 (4) deals with the subordination of Courts. It is different from the subordination of
Courts generally for the purpose of Cr.P.C. which is dealt with in Sections 15 and 23 of the
Code. Under this section, the Court to which appeal ordinarily lies from the appealable decrees
or sentences of the Court, is the Court to which such Court is subordinate and in case of Civil
Court from whose decrees no appeal lies, it is subordinate to the principal Court having
ordinarily original Civil jurisdiction, within whose local jurisdiction such Civil Court is situate. It
has been held that the Court of single Judge of the High Court is subordinate to the Division
Bench of the High Court which hears appeals from such Court in certain cases.

The two provisos to sub-section (4) deal with (1) subordination of Court whose appeal to more
than one Court lies; and (2) subordination when there is dual jurisdiction i.e. where appeals from
a Court may in certain cases go to a Civil Court and in other cases to revenue Court. In such
cases the subordination must be decided according to the nature of the case in connection with
which the offence is alleged to have been committed.

These restrictions have been placed on sound policy considerations and have been considered
important for faster disposal of cases. S. 198 lays down an exception to the general rule that a
complaint can be filed by anybody even if not connected to the victim and modifies this by
saying that only aggrieved person or person specified under the section can file a complaint
relating to offences relating to marriage. The object of this section is to prevent a Magistrate of
his own motion inquiring into cases of marriage, unless the husband or other authorized person
complains so, but once a case has been placed before him, a Magistrate is free to proceed against
any person implicated. It must be understood that this section neither confer any power of
cognizance on the court nor a right to complain on the aggrieved person.

45
6. COMPLAINTS TO MAGISTRATE

Section-200-203 has been enacted for weeding out false, frivolous and vexatious complaints
aimed at harassing the accused person. However these Sections are exclusively applicable in
cases where the cognizance is taken on a complaint. Such special procedure is not needed in
cases where cognizance has been taken on a police report.

Examination of Complaint (Section-200-201): Section-200 provides that a magistrate taking

cognizance of an offence on a complaint shall examine upon oath the complainant and the
witnesses present, if any and that the substance of such examination shall be reduced to writing
and signed by the complainant and the witnesses, and the Magistrate.

The object of such examination is to ascertain whether there is a prima facie case against the
accused person. The provision is mandatory and not discretionary. The magistrate must examine
the complainant even though the facts are fully set out in the written complaint. He must give the
complainant or his pleader an opportunity of being heard.

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 it is not in writing, direct the complainant to the proper court. (Section-201)

Where the court acquitted the accused on the ground that it had no jurisdiction to take
cognizance of the complaint, such an order would be illegal as the court ought to have returned
the complaint for presentation to the proper court (Rajendra Singh v State1989 Cr LJ 2277
(Pat).

Inquiry for further scrutiny of the complaint (Section-202): The duly of a magistrate receiving a
complaint is that on receipt of a complaint, he may 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/any other person, for the purpose of deciding whether or not there is sufficient ground for
proceeding in the matter.

46
The object is of three fold

a) to ascertain the facts constituting the offence;

b) to prevent abuse of process resulting in wastage of time of the court and harassment to the
accused.

c) to help the magistrate to judge if there is sufficient ground calling for investigation and for
proceeding with the case.

The function of the magistrate holding a preliminary inquiry is only to be satisfied that a prima
facie case made out against the accused on the materials placed before him by the complainant.
The magistrate can, therefore, postpone issue of process against accused till receipt of report by
police.

The magistrate has discretion to postpone the issue of process against the accused but in that
event he gas to record its reasons in writing merely directing a police officer to enquire and
report is no compliance with the provisions of this section. (Amresh Chandra v N.K. Chandra)5

Dismissal of complaint (Section-203): If, after considering the statements on oath of the
complainant and witnesses and the result of the inquiry or investigation, the magistrate is of the
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 doing so.

Broadly speaking, a magistrate may dismiss a complaint in the three cases

a. If, upon the statement of the complainant recorded under section 200, he finds that no offence
has been committed.

b. If he distrusts the statement made by the complainant.

c. If he distrusts such a statement, but

7. COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATE

This chapter (Section-204-210) relates to commencement of proceedings before Magistrate when

the cognizance of an offence has been taken.

47
Issue of process (Section-204): If the magistrate taking cognizance of an offence considers that
there is sufficient ground for proceeding, then if the case appears to be
a) summons case, he shall issue his summons for the attendance of accused, or
b) A warrant case, he may issue a warrant or a summons, for causing the accused to be brought
or (if he has no jurisdiction himself
f) Some other magistrate having jurisdiction.
No summons or warrant can be issued against the accused, until a list of prosecution witnesses
has been filed. Further, every summons or warrant shall be accompanied by a copy of complaint
where the complaint was made in writing.
A magistrate who has neither taken cognizance nor is one to whom case has been transferred
cannot issue process (Rajendra Nath v D.S.P, Purulia AIR 1972 SC 270).
Where an accused has been summoned to appear before a magistrate, proceedings commence
under this chapter and the magistrate cannot thereafter dismiss the complaint under section-203.
Magistrate may dispense with personal attendance of accused (Section-205): Whenever a
magistrate issues a summons, he may dispense with the personal attendance of the accused, and
allow him to appear through his pleader, if there is sufficient reason for doing so. However, at
any stage of the proceedings, the magistrate may, in his discretion, direct the personal attendance
of the accused and enforces it in the prescribed manner.
This section deals with exemption from initial appearance and not with exemption from
appearance at the final trial. This power can be exercised by a magistrate only when a summons
has been issued (either in a summons/warrant case) but not when a warrant is" issued. This
discretion may be exercised by the magistrate even in the absence of a prayer from the accused.
(Durgadas 27 CAL 985). The magistrate must give reasons for granting exemption.
Special summons in cases of petty offence (Section-206): If a magistrate is taking cognizance
of a petty offence i.e. offences which are punishable only with fine upto 1000 rupees, and if the
case can be summarily disposed of under section-260, the magistrate must (unless he records a
contrary opinion in writing) issue summons to the accused requiring him to appear in person (or
by a pleader) on a specified date, or to plead guilty without appearance.
Supply to the accused of copy of police report and other documents (Section-207): The
accused should be given relevant documents or extracts from them, in cases where proceeding
has been instituted on a police report, so that the accused is able to know the charge brought

48
against him and the materials with the aid of which the charge is going to be substantiated by the
prosecution.
It is the duty of the magistrate to furnish to the accused without delay and free of cost the copy of
(i) the police report (ii) the F.IR. (iii) the statements of witnesses recorded under section-161 (3)
excluding those which the magistrate after perusing the police request under section-176(3) do
not think advisable to supply
(iv) the statements/confessions recorded under section-164 and (v) any other documents
forwarded to the magistrate with the police report under section-173(5).
Supply of copies of statements and documents to accused in other cases triable by court of
session (Section-20B): A case which is instituted otherwise than on a police report, if it appears
to the magistrate issuing the process that the offence can be tried exclusively by the Sessions
Court, the magistrate must, without any delay, furnish to the accused free of court, a copy of the
following documents
a) The statements (recorded under section-200/202) of all persons examined by the magistrate.
b) The statements/confessions recorded under section-161 or 164.
c) Any documents produced before the magistrate on which the prosecution proposes to rely.
Commitment of case to court of sessions (Section-209): A case (instituted on a police report
otherwise) if it appears to the magistrate that the offence is triable exclusively by the sessions
court, he must commit the case to that court, send records of the case along with
documents/articles to be produced in evidence and notify the public prosecutor.

8. THE CHARGE

A charge simply means an accusation in writing against a person that he committed an offence. It
is always for the court to frame a charge against the accused.
A) Form of Charge :
Content of Charge (Section-211):
a. It must state the offence with which the accused is charged.
b. If the law which creates the offence gives it any specific name, the offence must be described
in the charge by that name only.
c. If the offence is not given any specific name, definition must be stated.
d. The law and the Section of the law against which the offence is said to have been committed.

49
e. It must be in the language of the court.
Ex.- A is charged with the murder of B. This is equivalent to a statement that A's act fell within
the definition of murder given in Section-299 and 300, IPC, that it did not fall within any of the
general exceptions of the said code and it did not fall within any of the five exceptions to
Section-300.
Particulars as to time, place and person (Section-212): The charge must contain such
particulars as to time and place of the alleged offence, and the person, if any, against whom, or
the thing if any, in respect of which, the offence was committed, as are reasonably sufficient to
give to the accused notice of the matter with which he is charged.
Where a person commits criminal breach of trust or dishonest misappropriation in respect of
various sums at different times in the course of a single year, he may be charged in respect of the
total of all the sums as for a single offence without specifying the items of which it is composed
or the dates on which they were misappropriated.
When manner of committing offence must be stated (Section-213): If the nature of the case is
such that the particulars mentioned is Section-211 and 212 do not give the accused sufficient
notice of the matter with which he is charged, the charge shall also contain such particulars of the
manner in which the alleged offence was committed as will be sufficient for that purpose.
Ex.-
a) A is accused of the theft of a certain article at a certain time and place. The charge need not set
out the manner in which theft was effected.
b) A is accused of cheating B at a given time and place. The charge must set out the manner in
which A cheated B.
In every charge of rioting and unlawful assembly, the common object must be set out. The
magistrate must specify, in the charge itself, the common object of the unlawful assembly.
Words in charge taken in sense of law under which offence is punishable (Section-214): In
every charge words used in describing an offence shall be deemed to have been used in the sense
attached to them respectively by the law under which such offence is punishable.
Cases when no charge need be framed
a) For inquiries under section-116
b) For trials of summons under section-251
c) For summary cases where no appeal lies (Section-263)

50
Effects of errors in the charge (Section-215): Omission in charge cannot be regarded as
material unless it is shown by the accused that he has in fact been misled by such omission or
that there has been a failure of justice as a result of such omission. Where the accused is not
misled, defect in the charge is not material.
Ex.- A is charged under section-242, IPC with having been in possession of counterfeit coin,
having known, at the time when he became possessed thereof, that such coin was counterfeit, the
word fraudulently being omitted in the charge. Unless it appears that A was in fact misled by this
omission, the error shall not be regarded as material.
Mere defect in framing of the charge or not framing of a charge is not by itself an illegality
which vitiates trial (P.P. Karpe v State of Maharashtra 1993 Cr L.J 2302 (Bombay).
Court may alter charge (Section-216): Any court may alter or add to any charge at any time
before judgment is pronounced provided that the accused has not to face for a new offence or is
not prejudiced either by keeping him in the dark about that charge or in not giving a full
opportunity of meeting it and putting forward any defence open to him, on the charge finally
preferred against him.
Recall of witnesses when charge altered (Section-217): The prosecutor and the accused has a
right to recall witnesses after the alteration of the charge, even if such alteration does not effect
his case. Such right may be denied by the court if it is of the opinion that the purpose is. only
delay or vexation or defeating the ends of justice.
B) Joinder of Charge:
Separate charges for distinct offence (Section-218): For every distinct offence of which any
person is accused, there must be a separate charge, and every separate charge must be tried
separately.
However, a magistrate may try together all or any number of charges framed against an accused,
if he is of opinion that such a person is not likely to be prejudiced thereby.
Ex.- A is accused of a theft on one occasion and of causing grievous hurt on another occasion, he
must be charged separately and also tried separately for theft and for causing grievous hurt.
Distinct offence as follows
a ) Theft and escape from lawful custody.
b) Kidnapping a boy and assaulting his mother.
c) Criminal misappropriation and cheating.

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Three offences of same kind within year may be charged together (Section-219): When a
person is accused of more offences than one of the same kind committed within the space of
twelve months, whether in respect of the same person or not, he may at one trial, be charged with
and tried for any number of such offence, not exceeding three in all - Offences are of the same
kind or they are punishable with the same amount of punishment.
Offences not punishable with same punishment as
a) Adultery and bigamy
b) Murder and grievous hurt
c) Forgery and giving false evidence.
Trial for more than one offence (Section-220): If in one series of acts which are so connected
together as to constitute the same transaction, more than one offence is committed by the same
person, he can be charged with and tried for every such offence at one trial only.
Ex.- (i) Theft of a cart from one house and theft of two bullocks from another house in order to
remove the cart.
(ii) Forgery, abetment of forgery and use of the forged document in the civil court.
Where it is doubtful what offence has been committed (Section-221): If a single act (or a
series of acts) is of such a nature that it is doubtful what offence has been committed. It applies
to cases in which the facts are not doubtful but the application of law to the facts is doubtful. If
the magistrate is not able to ascertain facts that exist which would justify a conviction, he must of
course, acquit the accused.
Conviction of an offence not specifically charged (Section-222): If a person is charged with an
offence consisting of several particulars, a combination some only of which constitute a
complete minor offence, and such a combination is proved, but the remaining particulars are not
proved, he may be convicted of minor offence; though he was not charged with such offence.
a) Persons accused of same offence committed in the course of the same transaction;
b) Persons accused of an offence, and persons accused of abetment of or attempt to commit, such
offence;
c) Persons accused of offences under section-411 and 414, IPC, or either of those Section, in
respect of stolen property, the possession of which has been transferred by one offence.
Withdrawal of remaining charges (Section-224): When a charge containing more heads than
one and a conviction has been obtained on one or more of them, the complainant or officer of the

52
prosecution may with draw the remaining charge. Such withdrawal will be considered as
acquittal.
9. TRIALS OF THE CASE

Trial before Court of Session

The trial before the Sessions Court must proceed and be dealt with continuously from its
inception to its finish. Sessions case must not be tried piecemeal. Once the trial commences, the
Sessions Judge must, except for a very pressing reason which makes an adjournment inevitable,
proceed till the final trial is concluded (Bhagirath v State of M.P AIR 1976 SC 975)

Trial to be conducted by public prosecutor (Section-225): In every trial before a court of

session, the prosecution shall be conducted by a public prosecutor.

Opening case for prosecution (Section-226): When an accused appears or is brought before the
court in pursuance of a committal of the case under section-209, the P.P. should give a brief
summary of the evidence and the particulars of the witnesses by which he proposes to prove the
case against the accused person.

It is the duty of trial court to secure the attendance of the accused. It cannot acquit the accused on
the ground that the prosecution failed to bring the accused (State of Gujraj v Nareshbhai
Haribhai Tande 1997 Cri LJ 2783 (Guj HC)

Discharge of Accused (Section-227): After considering the record of the case, and after hearing
the submission of the parties, if the court considers that there is no sufficient ground for
proceeding against the accused, it shall discharge him and record its reasons for so doing.

At the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor
proposes to adduce are not to be meticulously judged. The court is only to see whether the
material on record is such on which a conviction can be said to be reasonably possible (State of
Bihar v Ramesh Singh AIR 1997 SC 2018)

Framing of charge (Section-228): After considering the record of the case, and hearing the
parties, if the judge is of opinion that there is a ground for presuming that the accused has
committed an offence which.

53
a) is not exclusively triable by court of sessions, he may frame a charge against the accused, and
transfer the case to the CJM, who shall then try the offence in accordance with the procedure for
the trial of warrant case instituted on a police report.

b) is exclusively triable by the court, he shall frame in writing a charge against the accused. The
charge shall be read and explained and be asked whether the accused pleads guilty of the offence
charged or claims to be tried.

Once the case is committed to the sessions court it becomes clothed with the jurisdiction to try it
and the mere fact that the offence disclosed was not exclusively triable by court of sessions does
not divest it of that jurisdiction (Sammun v State of M.P 1988 Cr LJ 498 (MP)

When an offence is not triable exclusively by sessions court, it. is not mandatory that it should
order transfer of case to CJM. Thus, when a case is exclusively triable by it and the counter case
is not, the session’s court could try both cases (Sudhir v State of M.P 2001, Cr LJ 1072 (SC)

Conviction on plea of guilty (229): If the accused pleads guilty, the judge shall record the plea
and in his discretion may convict him.

The plea of guilty only amounts to an admission that the accused committed the acts alleged
against him and must plead by his own mouth and not through his counselor pleader (Sursing
(1904) 6 Born LR 861)

The court has discretion either to convict the accused or to proceed with the trial, so this
discretion is to be exercised properly, especially in a case when some plead guilty and the others
claim to be tried (Khandia (1890) 15 Born 66).

Date for prosecution evidence (Section-230): If the accused refuses to plead, or does not plead,
or claims to be tried or is not convicted, the judge shall fix a date for the examination of
witnesses. On the, application of the prosecution the judge may issue any process for compelling
the attendance of any witness or the production of any document or other things.

If the prosecution fails to produce witnesses, on a direction by the court, the court must issue a
warrant to compel the attendance of such witnesses because production of witnesses is the
responsibility of the court (State of Mysore v Ramu 1973 Cr LJ 1257 (Mysore)

54
Evidence for prosecution (Section-231): On the date fixed for evidence, the judge shall proceed
to take all such evidence as may be produced in support of the prosecution and may permit the
cross examination of any witness to be deferred untill any other witness has been examined or
recall any witness for further cross-examination.

The prosecution is generally not bound to produce every witness but it must examine all the eye-
witnesses when some of them are interested and require corroboration (Bir Singh v State of UP
AIR 1978 SC 59

Acquittal of accused (Section-232): After (a) taking the evidence of the prosecution (b)
examining the accused (c) hearing the prosecution and defence on the point, if the judge
considers that there is no evidence that the accused had committed the offence, the judge, shall
record an order of acquittal.

Evidence for the defence (Section-233): When the accused is not acquitted the court calls upon
him to enter on his defence and adduce any evidence in support of his defence. Any written
statement put by the accused must be filed with the record.

On request by accused for issue of process to compel attendance of witnesses or production of

documents, the judge shall issue such process unless he considers the request to be vexatious or
made for the purpose of delay or defeating the ends of justice.

The court cannot direct or require accused to pay expenses of witnesses sought to be examined
by in his defence (Mahe Aalam v State of U.P 2005 Cr LJ 4554 All

Arguments (Section-234): When the examination of the defence witnesses is complete, the
prosecutor sums up his case, and the accused or his pleader shall be entitled to reply. Where any
law point is raised by the defence the prosecution may be allowed to make his submission with
regard to such point of law.

Judgment (Section-235): After hearing the arguments and P9ints of law (if any) the judge shall
give a judgment in the case.

Procedure in case of previous conviction (Section-236): In a case where a previous conviction is

charged under section-211 (7), and the accused denied to be previously convicted, as alleged in

55
the charge, the judge may, after convicting the accused, take evidence in respect of the alleged
previous conviction necessary to prevent the accused from being prejudiced at the trial

Trial of Warrant Cases before Magistrate

This chapter has been divided into three groupsa)

Cases instituted on police report (Section-238 to 243)

b) Cases instituted otherwise than on a police report (Section-244 to 247)

c) Equally applicable to both (Section-248 to 250)

The difference in procedure is understandable. In cases instituted on a police report, lot of record
made during investigations by the police is made available to the court and to the accused
person. Such record cannot obviously be available (as it simply does not exist) in cases instituted
otherwise than on police report. Therefore it becomes necessary in such cases to provide special
procedures to enable the accused to acquaint himself with the facts of the case on which the
prosecution is relying before he is called upon to defend himself.

A) Cases instituted on police report (Section-238 to 243):

Supply of copies of documents to accused (Section-238): When the accused appears or is

brought before a magistrate at the commencement of the trial, he shall satisfy him that the copies
of the police report, FIR, confusions, etc. as required by Section-207 has been supplied to the
accused. Under old law, this duty was on the police.

The expression "at the commencement of the trial" means at the beginning of the trial, and trial
starts when the charge is framed (Nageshwar Singh State of Assam 1973 Cr LJ 193, 194 (Gau
HC)

Discharge of accused (Section-239): If after (a) considering the police report and other
documents (b) examination of the accused, and (c) giving the prosecution and the accused a
opportunity of being heard, the magistrate considers the charge against the accused to be
groundless, he shall discharge the accused and record his reasons for so doing.

56
In State of H.P. v Krishan Lal 1987 Cr LJ 709 (SC) there was sufficient material on record to
summon the accused persons and therefore the judge had found that a prima facie case has been
made out. But his successor judge passed an order to discharge. Held that no order of discharge
could be passed by the successor in office because such an order would amount to review of the
earlier order not permitted under the code.

But where fresh material was found to proceed against the discharged accused in a fresh trial, the
magistrate would be competent to take cognizance as it did not amount to review of discharge
order (Vijya Bai v State of Rajasthan 1990 Cr LJ 1754 (Raj)

Framing of charge (Section-240): After consideration, examination and hearing, the magistrate
is of opinion that there is ground for presuming that the accused has committed an offence which
he is competent to try and which could be adequately punished by him, he shall frame a charge
in writing against the accused. It shall be read and explained and be asked whether he pleads
guilty or claims to be tried.

The court should not automatically frame the charge merely because the prosecuting authorities
consider it proper to institute the case. This responsibility is of that court. (Century Spinning &
Manufacturing Co. v State of Maharashtra (1972) 3 SCC 282)

Conviction on plea of guilty (Section-241): It the accused pleads guilty, the magistrate shall
record the plea and may, in his discretion, convict him.

Evidence for prosecution (Section-242): If the accused refuses to plead, or claims to be tried or
the magistrate does not convict the accused, the magistrate shall fix a date for the examination of
witnesses.

On the application of the prosecution, the magistrate may issue a summons to any of its
witnesses directing him to attend or to produce any document thing.

On the date fixed for the examination of witnesses, the magistrate shall proceed to take all such
evidence as may be produced in support of the prosecution. He may permit the cross-
examination of any witness to be deferred until any other witness has been examined, or recall
any witness for further cross-examination.

57
Where enough number of eye-witnesses have been examined and their evidence is reliable and
sufficient to base the conviction of the accused, the prosecution may decide to refrain from
examining other witnesses (Ram Prasad v State of U.P. AIR 1973 SC 2673).

Evidence for defence (Section-243): After the prosecution evidence is over, the accused shall be
called upon to enter upon his defence and produce his evidence. If he puts in any written
statement the magistrate shall file it with the record.

If the accused applies to magistrate to issue process for calling any witness for examing/cross-
examination or for the production of document/thing, the magistrate shall issue process unless he
considers that such application is made for the purpose of vexation or defeating the ends of
justice.

The magistrate may require the accused to deposit reasonable expenses which may be incurred
by the witnesses for the purpose of attendance in court.

Where the accused lacks the capacity or means to pal so, the court may exempt him.
(Venkateswara Rao v State 1979 Cr LJ 255 (A.P.)

B) Cases instituted otherwise than on police report (Section-244-247):

Evidence for prosecution (Section-244): When the accused appears or is brought before the
magistrate, he is required to hear the prosecution and to take such evidence as may be produced
in support of the prosecution. The magistrate may also summon such persons whom the
prosecution wishes to give evidence in support of its case.

The magistrate should before closing evidence and framing the charge, ask the prosecution
whether it wants some more of its witnesses to be examined in support of the complaint.
(Yashodabai Keshav v Bhaskar 1973, Cr LJ 1007).

Discharge of accused (Section-245): The magistrate shall discharge an accused after taking all

the evidence produced by the prosecution, if he considers (for reasons to be recorded) that no
case against the accused has been made out. The magistrate is also empowered to discharge the
accused at any previous stage of the case if he considers the charge to be groundless.

58
Normally, a person cannot be discharged unless the prosecution evidence has been taken and the
magistrate considers that no case is made out against the accused. Section-245(2) is an exception
to this rule.

Framing of charge (Section-246): The magistrate shall frame a charge after the prosecution
evidence is over, or at any previous stage of the case, if he forms the opinion that a prima facie
case has been made out against the accused it shall be read and explained to the accused and be
asked whether he pleads guilty or has any defence to make. If he pleads guilty, the magistrate in
to record plea and may convict him thereon.

If, however the accused refuses to plead, or does not plead, or claims to be tried, or if he is not
convicted, the accused shall be required to state whether he wishes to cross-examination any
witness for the prosecution whose evidence has already been taken. If he wishes to do so, the
witness named by him shall be recalled, and cross-examined and re-examined (if necessary). The
evidence of any remaining witnesses for the prosecution shall next be taken and after cross
examination and re-examination (if any) they shall also be discharged.

Sufficient time should be given to the accused to think over whether he wishes to cross-examine
any of the prosecution witnesses after framing of the charge and it is only in special cases that
the magistrate can require him to state forthwith if he so wishes.

Evidence for defence (Section-247): After the completion of the prosecution evidence,
arguments, and the examination of the accused, the accused shall then be called upon to enter
upon his defence and produce his evidence, and the provisions of Section-243 shall apply to the
case.

C) Conclusion of trial (Section-248 to 250): Conclusion of trial lays down a common procedure
in respect of cases instituted on a police report and cases instituted otherwise than on a police
report.

Acquittal or conviction (Section-248): After the close of the defence and after hearing arguments
the magistrate shall give a judgment in the case.

If in any case in which a charge has been framed and the magistrate finds the accused not guilty,
he shall record an order of acquittal and where the magistrate finds the accused guilty, but does

59
not proceed in accordance with the provision of Section-325 (cases where the magistrate cannot
pass sentence sufficiently severe) or Section-360 (cases where he releases the accused on
probation etc) he passes sentence on the accused after giving him a hearing.

Absence of complainant (Section-249): If the complainant is absent on the day fixed for the
hearing of the case, the magistrate may in his discretion, discharge the accused

i) the offence is compoundable

ii) the offence is not cognizable

iii) the proceedings have been instituted upon complaint

iv) the charge has not been framed.

After framing of the charge the magistrate cannot discharge the accused due to default of
appearance by the complainant (Aswini Kumar v Dwijen Dey AIR 1966 Tripura 20). So also if
the complainant dies after framing of the charge the magistrate must proceed with the case.
(Wipal Singh v Manipur Administration (1962) 1 Cr LJ 175).

Trial of Summons Cases by Magistrate

Summon cases are tried with much less formality than warrant and the manner of their trial is
less elaborate. Even the method of preparing the record (of evidence) is less formal.

Explaining the substance of the accusation to the accused (Section-251): When the accused
appears or is brought before the magistrate, the particulars of the accusation shall be stated to
him and he be asked whether pleads guilty or has any defence to make. It is not necessary to
frame a formal charge.

Conviction on plea of guilty (Section-252): If the accused pleads guilty, the magistrate shall
record the plea as nearly as possible in the words used by the accused and may, and may not
convict him thereon.

A joint statement cannot be treated as a plea of guilty by all the accused persons (Thargiam v
Irabot Singh (1907) 4 Born LR 1346)

60
An accused cannot register the plea of guilty on behalf of the co-accused (State of Maharashtra
v Dhruwa Woolen Mills Pvt Ltd 1991 Cr LJ 3142 (Bombay)

Conviction on plea of guilty in absence of accused in petty cases (Section-253): Where a

summons has been issued under section-206 (i.e. in cases of petty offences) and the accused
desires to plead guilty without appearing before the magistrate, he shall transmit to the
magistrate a letter containing his plea and also the amount of fine specified in the summons. The
magistrate may then convict the accused in his absence, and sentence him to pay the specified
fine. A pleader may also plead guilty on behalf of the accused. This provision is for the speedy
disposal of petty cases.

Procedure when not convicted (Section-254): If the magistrate does not convict the accused
the magistrate shall proceed to hear the prosecution and accused and take all such evidence as
may be produced in support of the prosecution or defence.

If the accused does not admit his guilt, the magistrate is bound to hear the complainant and his
witnesses.

He cannot acquit the accused without examining the complainant and his witnesses. the
application of the prosecution or the accused the magistrate may issue a summons to any witness
for his presence.

Acquittal or conviction (Section-255): If the magistrate, upon taking the evidence for the
prosecution for the defence, and such further evidence, if any, as he may on his own motion,
cause to be produced, finds the accused not guilty, he shall record an order of acquittal.

Where the magistrate does not proceed in accordance with the provisions of Section-325 or
Section-325 he shall, if he finds the accused guilty, pass sentence upon him according to law.

It was held by the Madras High Court that where summons have been issued for the production
of evidence by the prosecution but he fails to produce the evidence, the acquittal of the accused
simply on is ground is not permissible. (State v Veerappan AIR 1980 Mad 260 (FB).

Non-appearance or death of complainant (Section-256): There are three courses upon to the
magistrate (in summons case) where the complainant is either absent or expired on the date of

61
the appearance of the accused or the date of the hearing (i) to acquit the accused (ii) to adjourn
the case for a future date (iii) to dispense with the attendance of the complainant and proceed
with the case, where e personal attendance is not necessary or the complainant is represented by
a pleader or public prosecutor.

The magistrate is not bound to wait until the court is about to close for the day but he should not
pass an order of acquittal in the early hours of the sitting of the court for the days business. (J.
George v Premi Solomon (1963) 13 Raj 735).

Withdrawal of complaint (Section-257): In cases instituted on complaint, the complainant may

be permitted to withdraw his complaint at any time before a final order is passed by satisfying
the magistrate that there are sufficient grounds for granting such permission and the accused
shall be acquitted.

For withdrawal of complaint consent of the accused is not required but the permission of the
court is necessary.

Power to stop proceedings in certain cases (Section-258): In any summons case instituted
otherwise than upon complaint, a first class magistrate or with the previous sanction of the CJM,
any other judicial magistrate may stop the proceedings at any stage without pronouncing the
judgment. When such stoppage is made after the evidence of the principal witnesses has been
recorded, such magistrate may pronounce a judgment of acquittal, and in any other case,
disharge.

Power of court to convert summons cases into warrant cases (Section-259): A magistrate
may try a summons case as a warrant case in certain circumstances if-

1. The summons case relates to an offence punishable with imprisonment for a term exceeding
six months.

2. The magistrate is of the opinion that such trial will be in the interest of justice.

Summary Trials

Summary trial is an abridged form of regular trial and is a short-cut in procedure. Considering
the risks involved in such short-cuts, it was considered necessary that only senior and

62
experienced judicial officers should be empowered to try certain petty cases summarily. A
summary trial implies speedy disposal and all cases should be tried by the summons procedure,
whether the case is summons case or warrant case. No formal charge is framed.

Power to try summarily (Section-260 to 261): Notwithstanding anything contained in this code',
any CJM, Metropolitan Magistrate or any first class magistrate specially empowered by the High
Court, may, if he thinks fit, try the offence in a summary manner. The offences area)

Offences not punishable with death, life imprisonment or imprisonment for a term exceeding 2
years.

b) Theft (Section-379 to 381 IPC) of property not exceeding 2000 rupees

c) Receiving/retaining stolen property not exceeding Rs. 2000.

d) Assisting in the concealment/disposal of such stolen property.

e) Lurking house trespass (Section-454/456 IPC)

f) Insult with intent to provoke a breach of the peace (Section-504 IPC) and criminal intimidation

(Section-506 IPC)

g) Abetment of any of the foregoing offences.

h) An attempt to commit any of the foregoing offences, when such attempt is also an offence.

i) Any offence constituted by an act in respect of which a complaint may be made under section-
20 Cattle Trespass Act 1871.

However, if in the course of a summary trial, it appears to him that the nature of the case is such
that it is undesirable to try it summarily, the magistrate may recall any already examined witness
and rehear the case afresh.

The summary procedure is to be applied to all offences irrespective of the fact whether any
offence is punishable under the IPC or not

63
Further a magistrate of second class may be empowered by the High Court to try summarily any
offence which is punishable only with fine or with imprisonment for a term not exceeding 6
months (with/ without fine) (Section-261).

Procedure for summary trials (Section-262): All cases should be tried by the summons
procedure and no sentence of imprisonment for more than three months can be passed in any
conviction.

If the court considers that a longer sentence is necessary in the interest of justice in any case, the
trial should be held as in a warrant case or as a summons case according to the nature of the
offence. But a sentence exceeding three months cannot be passed in summary trials.

Record in summary trials (Section-263):

I. serial number of case.

II. date of the commission of the offence

III. date of report/complaint.

IV. name of complainant.

V. name, parentage and residence of the accused.

VI. offence complained of, and the offence (if any) proved, and value of the property in respect

of which the offence has been committed

VII. plea of the accused and his examination

VIII. finding

IX. sentence/other final order

X. date on which the proceedings terminated.

Judgment (Section-264): In every case in which accused does not plead guilty; the magistrate
shall record the substance of the evidence and a judgment containing a brief statement of the
reasons for e finding.

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Language (Section-265): Every such record and judgment shall be written in the language of the
court and signed by the magistrate.

9. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN] ACT, 2000

The Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 with a
view to consolidate and amend the law relating to juveniles in conflict with law and children in
need of care and protection, by providing for proper care, protection and treatment by catering to
their development needs, and by adopting a child friendly approach in the adjudication and
disposition of matters in the best interest of children and for their ultimate rehabilitation through
various institutions established under this enactment.

Definitions: In this Act, unless the context otherwise requires,

i. "advisory board" means a Central or a State advisory board or a district and city level advisory
board, as the case may be, constituted under section 62;

ii. “Begging” mean

a. soliciting or receiving alms in a public place or entering into any private premises for the
purposeof soliciting or receiving alms, under any pretence;

b. exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury,
deformity or disease, whether of himself, or of any other person or of an animal; \

iii. "Board" means a Juvenile Justice Board constituted under section 4;

iv. "Child in need of care and protection" means a child –

a. who is found without any home or settled place or abode and without any ostensible means of
subsistence,

b. who resides with a person (whether a guardian of the child or not) and such person-

I. has threatened to kill or injure the child and there is a reasonable likelihood of the threat being
carried out, or

65
II. Has killed, abused or neglected some other child or children and there is a reasonable
likelihood of the child in question being killed, abused or neglected by that person,

c. who is mentally or physically challenged or ill child or children suffering from terminal
diseases or incurable diseases having no one to support or look after,

d. who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise
control over the child,

e. who does not have parent and no one is willing to take care of him or whose have abandoned
him or who is missing and run away child and whose parents ca found after reasonable inquiry,

f. who is being or is likely to be grossly abused, tortured or exploited for the purpose sexual
abuse or illegal acts,

g. who is found vulnerable and is likely to be inducted into drug abuse or trafficking,

h. who is being or is likely to be abused for unconscionable gains,

i. who is victim of any armed conflict, civil commotion or natural calamity;

v. "children's home" means an institution established by a State Government or by voluntary

organization and certified by that Government under section 34;

vi. "Committee" means a Child Welfare Committee constituted under section 29;

vii. “Competent authority" means in relation to children in need of care and protection a
Committee and in relation to juveniles in conflict with law a Board;

viii. “Fit institution" means a governmental or a registered non-governmental organization or a

voluntary organization prepared to own the responsibility of a child and such organization is
found fit by the competent authority;

ix. "Fit person" means a person, being a social worker or any other person, who is prepared to
own the responsibility of a child and is found fit by the competent authority to receive and take
care of the child;

66
x. "guardian", in relation to a child, means his natural guardian or any other person having the
actual charge or control over the child and recognized by the competent authority as a guardian
in course of proceedings before that authority;

xi. "Juvenile" or "child" means a person who has not completed eighteenth year of age;

xii. "Juvenile in conflict with law" means a juvenile who is alleged to have committed an
offence;

xiii. "Local authority" means Panchayats at the village and Zila Parishad at the district level and
shall also include a Municipal Committee or Corporation or a Cantonment Board or such other
body legally entitled to function as local authority by the Government;

xiv. "Narcotic drug" and "psychotropic substance" shall have the meanings respectively assigned
to them in the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985);

xv. "Observation home" means a home established by a State Government or by a voluntary

organization and certificated by that State Government under section 8 as an observation home
for the juveniles in conflict with law;

xvi. "Offence" means an offence punishable under any law for the time being in force;

xvii. "Place of safety" means any place or institution (not being a police lock-up or jail), the
person in charge of which is willing temporarily to receive and take care of the juvenile and
which, in the opinion of the competent authority, may be a place of safety for the juvenile;

xviii. "Prescribed" means prescribed by rules made under this Act;

xix. "Probation officer" means an officer appointed by the State Government as a probation
officer under the

xx. "Public place" shall have the meaning assigned to it in the Immoral Traffic (Prevention Act,
1956 (104 of 1956);

xxi. "Shelter home" means a home or a drop-in-centre set up under section 37;

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xxii. "Special home" means an institution established by a State Government or by a voluntary
organization and certified by that Government under Section 9;

xxiii. "Special juvenile police unit" means a unit of the police force of a State designated for
handling of juveniles or children under section 63;

xxiv."State Government", in relation to a Union territory, means the Administrator of that Union
territory appointed by the President under Article 239 of the Constitution;

xxv. All words and expressions used but not defined in this Act and defined in the Code of
Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in
that Code.

Section 3 provides that where an inquiry has been commenced against a juvenile in conflict with
law or a child in need of care and protection and during the course of inquiry the juvenile or
child ceases to be a juvenile, then the inquiry may be continued and orders may be made as if
such person has continued to be a juvenile. This position will continue in spite of any provisions
contained in this Act or any other law for the time being in force.

Section 4 of the Act makes provision regarding constitution of Juvenile Justice Board. The
power to constitute such Board vests in the State Government. Such Board may be constituted
for a district or group of districts specified in the notification issued by the State Government
concerned.

Section 4(2) makes provisions regarding the personnel who shall constitute the Board. The Board
shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case
may be, and two social workers of whom at least one shall be a woman. Every bench of the
Board shall have the powers conferred by the Code of Criminal Procedure, 1973 on a
Metropolitan Magistrate or, as the case may be, a

Judicial Magistrate of the first class

Sub-section (3) of Section 4 provides qualifications of Magistrates who can be appointed as

members of the Board. Sub-Section (4) deals with term of office of the members of the Board

68
and sub-section (5) provides for grounds and mode of termination of appointment of any member
of the Board.

According to Section 6, the Board shall have power to deal exclusively with all proceedings
under this Act relating to juvenile in conflict with law except as otherwise provided in this Act.

Section 6(2) provides that the powers conferred on Board by or under this Act may also be
exercised by 'he High Court and the Court of Sessions when the proceeding comes before them
in appeal revision or otherwise.

Section 8(1) confers power of the State Government to establish and maintain observation homes
in every district or a group of districts, as may be) required for the temporary reception of any
juvenile in conflict with law during the pendency of any inquiry regarding them under this Act.
Such observation homes may be established either by the State Government, themselves or under
an agreement with voluntary organisation.

Under Section 8(2) the State Government is also empowered to certify any institution other than
a home established or maintained under sub-section (1) of Section 8. The Government may
certify that the institution is fit for temporary reception of juvenile in conflict with law during the
pendency of any inquiry regarding them under this Act.

Section 8(3) empowers the State Government to make rules providing for the management of
observation homes. Rules so made may also provide for the standards and various types of
services to be provided by the observation homes for rehabilitation and social integration of the
juvenile. The circumstances under which and the manner in which, the certification of an
observation home may be granted or withdrawn may also be provided by such rules.

Section 8(4) provides for those cases where any juvenile is not placed under the charge of parent
or guardian and is sent to an observation home. Every such juvenile shall be initially kept in a
reception unit of the observation home for preliminary inquiries, care and classification for
juveniles. Classification shall be made according to the age group of the juvenile such as seven
to twelve years, twelve to sixteen years and sixteen to eighteen years. While making such
classification due consideration shall be given to physical and mental status and degree of the

69
offence committed by him. This procedure has to be followed prior to further induction of the
juvenile into observation home.

Section 9(1) empowers any State Government to establish and maintain special homes in every
district or a group of districts for the reception and rehabilitation of juvenile in conflict with law.
The State Government may either establish a special home itself or it may do so under an
agreement with voluntary organisations.

Under Section 9(2) the State Governments have also been empowered to certify any institution,
other than

a special home established or maintained under section 9(1), that it is fit for the reception of a
juvenile in conflict with law.

Section 9(3) empowers the State Government to make rules under this Act. These rules may
provide for the management of special homes including the standards and various types of
services to be provided by them. Such types of services shall be provided which are necessary
for re-socialization of a juvenile. These rules may also provide for the circumstances under
which, and the manner in which the certification of a special home may be granted or withdrawn.

According to Section 9(4) the rules made under section 9(3) may also provide for the
classification and separation of juvenile in conflict with law on the basis of age and nature of the
offence committed by them and his mental and physical status.

Section 12 makes provision regarding granting of bail to juveniles. According to Section 12(1)
any person who is a juvenile and is accused of a bailable or non-bailable offence may be released
on bail notwithstanding anything contained in the Cr.P.C. or in any other law for the time being
in force. A juvenile shall not be released on bail if there appear reasonable grounds for believing
that the juvenile if released may come in association with may known criminal or the release
may expose a juvenile to moral, physical or psychological danger or would defeat the ends of
justice.

According to Section 12(2) if a juvenile is not released on bail under sub-section( 1) by the
officer in charge of the police station, such officer shall ensure that the juvenile is kept only in an

70
observation home. A juvenile shall not be kept in a police station of jail until he can be brought
before a Board.

In view of Section 12(3) when a juvenile is not released on bail under sub-section(1) by the
Board, the Board shall instead of committing him to prison, make an order for sending him to an
observation home, or a place of safety during the pendency of inquiry.

Section 13 provides that when a juvenile is arrested the Officer in-charge of the police station or
the special juvenile police unit to which the juvenile is brought shall, as soon as may be, after the
arrest take the following action

a) He shall inform the parent or guardian of the juvenile about his arrest and direct him to be
present at the Board before which the juvenile will appear; and

b) He shall also inform the probation officer about such arrest to enable him to obtain
information regarding the antecedents and family background of the juvenile and other material
circumstances which are likely to be of assistance to the Board for making the inquiry.

Sub-section (1) of Section 15 deals with the orders that may be passed by a Board when the
Court is satisfied on inquiry that a juvenile has committed an offence.

According to Section 15(3) the Board is empowered to order a delinquent juvenile to remain
under the supervision of a probation officer named in the order. The Board may in such
supervision order impose such conditions as it thinks necessary. The period of being kept in
supervision of a probation officer shall not exceed three years. In view of proviso to Section
15(2) if it appears to the Board on receiving a report from the probation officer or otherwise that
a delinquent juveniles has not been of good behaviour during the period of supervision it may
after such inquiry as it deems fit, order the delinquent to be sent to a special home. The Board
may also order a juvenile to be sent to a special home where the institution under whose care the
juvenile was placed in no longer willing or able to ensure the good behavior and well-being of
the juvenile.

Sub-section (4) imposes a duty on Board making a supervision order under sub-section (3) to
explain to the juvenile and the parent, guardian or other person or institution under whose care
the juvenile has been placed, the terms and conditions of the order. A copy of the supervision

71
order shall be given to the Juvenile, the parent, guardian etc. or the sureties if any and the
probation officer.

According to Section 16(1) the following orders cannot be passed against juveniles in conflict
with law

a) Sentence of death;

b) Sentence to imprisonment;

c) Commitment of prison in default of payment of fine or in default of furnishing security.

However in a case where an offence has been committed by a juvenile who has attained the age
of 16 years and in the opinion of the Board the offence is of so serious a nature and the conduct
of juvenile is such that it would not be in his interest or in the interest of other juvenile in a
special home to send him to such special home and that none of the other measures provided
under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to
be kept in such place of safety and manner as it thinks fit. The Board shall also report the case
for orders of the State Government.

According to Section 16(2) when a report from a Board is received by the State Government, it
may make such arrangement in respect of the juvenile as it deems proper. The State Government
may order the place where such juvenile is to be detained and the conditions under which he is to
be kept. Provided that the period of detention so ordered by the State Government shall not
exceed the maximum period of imprisonment to which the juvenile could have been sentenced
for the offence committed by him.

Section 23 provides punishment for cruelty to juvenile or child. Under this section any person
having the actual charge of, or control over, a juvenile or the child is punished. Such person can
be punished if he assaults, abandons, exposes or willfully neglects the juvenile or causes or
procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such
juvenile or the child unnecessarymental or physical suffering. He shall be punishable with
imprisonment for a maximum period of six 110nths or fine or with both.

72
Section 34(1) empowers the State Government to establish and maintain either by itself or in
association with voluntary organisations children's homes in every district or a group of districts
for the reception of childin need of care and protection during the pendency of any inquiry. After
the inquiry is over a children's homewill serve the need of care, treatment, education, training,
development and rehabilitation.

Under section 34(2) the State Government has power to make rules which may provide for the
management of children's home. These rules may also provide for standards and the nature of
services to be provided by them. The rules will also provide for the circumstances under which
and the manner in which the certification of a children's home or recognition to a voluntary
organisation may be granted or withdrawn.

Section 37(1) empowers the State Government to recognise reputed and capable voluntary
organizations and provide them assistance to set up and administer as many shelter homes for
juveniles or children as may be required.

According to section 37(2) the shelter homes shall function as drop-in-centres for the children in
need for urgent support who have been brought to such homes through persons referred to in
section 32(1) of this

Act.

According to section 37(3) as far as possible the shelter homes shall have such facilities as may
be prescribed by the rules.

Section 64 makes provision regarding a juvenile in conflict with law undergoing sentence of
imprisonment at commencement of this Act. In any area in which this Act is brought into force,
the State Government or the local authority may direct that a juvenile of the category stated
above shall in lieu of undergoing such sentence, be sent to special home or be kept in fit
institution in such manner as the State Government or the local authority thinks fit for the
remainder of the period of sentence. Further the provisions of this Act shall apply to the juvenile
as if he had been ordered by the Board to be sent to such special home or institution or, as the
case may be, ordered to be kept under protective care under section 16(2) of this Act.

73
 THE PROBATION OF OFFENDERS ACT, 1958

The Probation of Offenders Act, 1958 was enacted in the year 1958. The reasons for enacting
central legislation relating to the release of offenders on probation was stated in the Statement of
Objects and Reasons as reported in the Gazette of India dated Nov. 11, 1957.

The Probation of Offenders Act, 1958 aims to provide for release of offenders on probation after
due admonition and for matters connected therewith. With the emerg3nc9 of reformative theory
of punishment the present Act has been enacted with a view to provide an offender the
opportunity of improving his conducts so as to be able to live in the society. Its aim is the
rehabilitation of the offender. If a chance offender is put in jail, he comes in contact with other
criminals and the chances of his being reformed and made worthy of living in the society are
diminished to a great extent.

The object of the Act has been re-stated by the Supreme Court in Jugal Kishore Prasad v. State
of Bihar that is to prevent the conversion of youthful offenders into obdurate criminals as result
of their association with hardened criminals of mature age in case the youthful offenders are
sentenced to undergo imprisonment in Jai.

a) "Code" means the Code of Criminal Procedure, 1898 (5 of 1898);

b) "probation officer" means an officer appointed to be a probation officer or recognized as such

under Section 13;

c) "Prescribed" means prescribed by rules made under this Act;

d) Words and expressions used but not defined in this Act and defined in the Code of Criminal

Procedure, 1898 (5 of 1898), shall have the meanings respectively assigned to them in that Code.

Section 3 of the Act deals with powers of the court to deal with certain offenders Section 3
applies when any person is found guilty of having committed an offence punishable under
Section 379 or Section 380 or

Section 381 or Section 404 or Section 420 of the Indian Penal Code It also applies in case of any
offence punishable with imprisonment for not more than 2 years or" with fine or with both under

74
the Indian Penal Code or any other law. The Court has power to release the offender after due
admonition. The conditions necessary for application of Section 3 are as follows-

1. No previous conviction is proved against the person who has been charged of having
committed an offence.

2. The Court by whom the person is found guilty is of the opinion that it is expedient to do so.

3. The Court may form its opinion keeping in view the nature of the offence and character of the
offender.

If the above conditions are fulfilled the court may, instead of sentencing him to any punishment
or releasing him on probation of good conduct under Section 4 of this Act release the-offender
after due admonition. The power may be exercised by the court in spite of anything contained in
any other law for the time being in force. That is even though there are provisions in some other
law which are contrary to the powers of the court under this Section, the provisions of this
Section shall prevail.

Explanation- The explanation annexed to Section 3 provides that for the purposes of this section
previous conviction against a person shall also include any previous order made against him
under Section 3 or

Section 4 of the Probation of Offenders Act, 1958

Section 4 of the Act deals with the power of the court to release certain offenders on probation of
good conduct Section 4(1) applies if following conditions prevail-

1) Any person is found guilty of having committed an offence.

2) The offence so committed must not be punishable with death or imprisonment for life.

3) The court by which the person is found guilty is of the opinion that it is expedient to release
him on probation of good conduct.

4) The court may from such opinion having regard to (i) the circumstances of the case, (ii) the
nature of the offence and (iii) the character of the offender.

75
If the above conditions are fulfilled, the court may, instead of sentencing him at once of any
punishment, direct that the offender should be released on entering into a bond to appear and
receive sentence when called upon during period of probation. The bond so directed to be taken
may be with or without securities.

The period of probation will be such as the court may direct but it will not exceed three years.
The probation order shall provide that the offender shall keep peace and be of good behaviour
during the probation period.

Proviso to Section 4(1) states that an offender shall not be released on probation of good conduct
unless the court is satisfied that the offender or his surety, if any, has a fixed place of abode or
regular occupation in the place over which the court exercises jurisdiction or in which the
offender is likely to live during the period for which he enters into the bond.

According to Section 4(2) before making any order under Section 4(1) the court shall take into
consideration the report, if any, of the probation officer concerned in relation to the case.

Section 4(3) empowers the court to pass a supervision order when an offender is released on
probation of good conduct by an order passed under Section 4(1). The court shall pass the
supervision order if it is of the opinion that such order is in the interest of the offender and it is
expedient to do so in the interest of public. By the supervision order the court may direct that the
offender shall remain under the supervision of a probation officer who shall be named in that
order. The period of supervision shall be specified in the order but it shall not be less than one
year. The court may also in such supervision order impose such conditions as it thinks necessary
for the due supervision of the offender.

By sub-section (4) of Section 4 some other conditions are also provided when a supervision
order is passed under Section 4(3). The court shall require the offender, before he is released to
enter into a bond to observe the conditions specified in the supervision order. The bond may be
required to be furnished either with or without sureties. Besides the conditions mentioned in the
supervision order under Section 4(3), additional condition may also be imposed which shall be
with respect to residence, abstention from intoxicants or any other matter, as the court may,
having regard to the particular circumstances consider fit to impose. These conditions are

76
imposed for preventing repetition of the same offence or a commission of other offences by the
offender.

Sub-section (5) imposes certain duties upon the court while passing a supervision order under
Section 4(3). The court shall explain to the offender the terms and conditions of the order and
shall forthwith furnish one copy of the supervision to each of the offenders, the sureties, if any,
and the probation officer concerned.

Section: 5(1) of the Act deals with power of the court to require an offender released under
Section 3 or Section 4 of the Act to pay compensation. Any order for payment of compensation
shall be such as the court thinks reasonabie for loss or injury caused to any person by the
commission of the offence. The court is also empowered to order payment of such costs of the
proceedings as it thinks reasonable.

Sub-section (2) provides that the amount of compensation ordered to be paid under sub-section
(1) may be recovered as a fine in accordance with the provisions of Section 386 and 387 of the
Criminal Procedure Code.

Sub-section (3) lays down that where a Civil Court is trying any suit, arising out of the same
matter for which the offender is prosecuted it shall take into account any" amount paid or
recovered as compensation under sub-section (1) in awarding damages.

Section 6 deals with restrictions on imprisonment of offenders who are under twenty-one years
of age.

When such a person is found guilty of having committed an offence punishable with
imprisonment the court shall not sentence to imprisonment. This restriction does not apply where
the offence committed is punishable with imprisonment for life. Any offender under 21 years of
age shall not be imprisoned unless the court is satisfied that it would not be desirable to deal with
him under Section 3 or Section 4 of the Act.

The satisfaction of the court shall depend upon the circumstances of the case, the nature of the
offence and the character of the offender. In case the court passes any sentence of imprisonment
in case of offenders under 21 years of age it shall record its reasons of doing so.

77
Sub-section (2) lays down that in order to satisfy whether it would not be desirable to deal under
Section 3 or

Section 4 with an offender as provided in sub-section (1) of this Section, the Court shall call for a
report of the probation officer. While taking above decision the court shall consider the report of
the probation officer and physical and mental conditions of the offender. Thus a decision will be
taken by the court after considering the above things whether an offender should be dealt with
under Section 3 or Section 4 or not.

Section 9 deals with the power of the court in case the offender fails to observe the conditions of
bond. The power given under Section 9 shall be exercised by the court which passes an order
under Section 4 of this

Act in respect of an offender or any court which could have dealt with offender in respect of his
original offence. The court may exercise its power on the report of a probation officer or
otherwise. If the court on the basis of the report of a probation officer or otherwise has reason to
believe that the offender has failed to observe any of the conditions of the bond or bonds entered
into by him, it may issue a warrant of arrest, or may, if it thinks fit, issue a summons to him and
his sureties if any. The court may require the offender or the sureties to attend before it at such
time as may be specified in the summons.

Sub-section (2) lay down that the court before which an offender is so brought or appears may
either remand him to custody until the case is concluded or it may grant him bail. Bail may be
granted with or without surety, to appear on the date which it may fix for hearing.

According to Section 9(3) if the court, after hearing the case, is satisfied that the offender has
failed to observe any of the conditions of the bond or bonds entered into by him, it may take
following action

a) The court may sentence him for the original offence; or

b) Where the failure on the part of the offender is for the first time, then, the court may impose
upon him a penalty not exceeding fifty rupees. The court may do so without prejudice to the
continuation enforce of the bond already entered with by the offender.

78
Sub-section (4) provides that if a penalty imposed under clause (b) of Section 9(3) is not paid
with such period as the court may fix, the court may sentence the offender for the original
offence.

79