“COMMENCEMENT OF PROCEEDINGS”

ROUGH DRAFT SUBMITTED IN THE PARTIAL FULFILENT OF THE COURSE

TITLED-
CRIMINAL LAW- II

Submitted by: Submitted to:

AMISHA PRAKASH Ms. Sugandha
ROLL NO:2005 (4TH Semester) (Faculty of Law)
B.B. A. LL. B, (CNLU, PATNA)
Academic session-2018-2023

CHANAKYA NATIONAL LAW UNIERSITY

Nyaya Nagar, Mithapur,Patna 80001
 COMMENCEMENT OF PROCEEDINGS

ACKNOWLEDGEMENT
It is my privilege to record my deep sense to perform gratitude to those who helped me in
completion of this project.
In making of this project many people helped me immensely directly or indirectly. I sincerely
acknowledge the help rendered to by our faculty Ms. Sugandha who had given me an idea
and encouragement in making this project. I also acknowledge the help of library and my
staff and my friends for being cordial in order to make conductive environment of the CNLU
hostel.
AMISHA PRAKASH
4TH SEMESTER

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 COMMENCEMENT OF PROCEEDINGS

CERTIFICATE
This is to certify that the project entitled “COMMENCEMENT OF PROCEEDING”
submitted by Ms. Amisha Prakash for the project work in the subject of Criminal Law- II
embodies independent and original research work carried out by him under my supervision
and guidance.
To the best of my knowledge and belief, it is his original work submitted to fulfill the project
assignment for the of fourth semester of B.B.A.LL.B. Programme during the academic year
2020-21
AMISHA PRAKASH
2005

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 COMMENCEMENT OF PROCEEDINGS

Table of Contents
1) INTRODUCTION..............................................................................................................5
1.2) Method of Research........................................................................................................6
1.3) Aims and Objectives.......................................................................................................6
1.4) Research Questions.........................................................................................................6
1.5) Hypothesis......................................................................................................................6
1.6) Scope and Limitations....................................................................................................6
1.7) Sources of Data...............................................................................................................6
1.8) Method of Writing..........................................................................................................6
1.9) Mode of Citation.............................................................................................................6
2)COMPLAINT TO MAGISTRATE........................................................................................7
2.1 ) Section 200....................................................................................................................7
2.1) Section 201..................................................................................................................8
2.3) Section 202..................................................................................................................9
2.4) Section 203................................................................................................................10
3) COMMENCEMENT OF PROCEEDINGS........................................................................11
3.1) SECTION 204...............................................................................................................11
3.2) Section 205...................................................................................................................13
3.3) Section 206...................................................................................................................14
3.4) Section 207...................................................................................................................16
3.5) Section 208...................................................................................................................17
3.6) Section 209...................................................................................................................18
3.7) Section 210...................................................................................................................19
4) RELATED CASES...........................................................................................................20
5) RELEVANT PROVISIONS AS TO SESSIONS TRIAL................................................22
6) FAIR TRIAL AND ITS PRINCIPLES............................................................................23
7) CONCLUSION AND SUGGESTIONS...........................................................................26

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1) INTRODUCTION
There are three stages of criminal cases; investigation, inquiry and trial. The first stage is
investigation and is reached when the police officer either by himself or under orders of
magistrate investigates into a case. when an information of a cognizable offence is received
or cognizable offence is suspected, a police officer in charge of a police station investigate
into the matter. If the information relates to non-cognizable offence, the police officer can
investigate only after the order of a magistrate.
The second stage is enquiry or trial. If the magistrate is of the opinion that the case is triable
by him and also, he is competent to impose adequate sentence on the accuse, he may himself
deal with the case and may discharge or acquit or convict the accused. If he is of the opinion
that the offence is serious one and exclusively triable by sessions court, he shall commit the
case to the court of sessions. Such committal is made only on the basis of inquiry conducted
by him finds that a prima facie case has been made out against the accused. They are known
as Committal proceedings.
The third and final stage of criminal proceeding is trial. Once investigation and inquiry ends
the trial begins, which ends in acquittal or in conviction.
Though the term “trial” is not defined in the code. The term “trial’’ is defined in various
dictionaries according to them
“A formal judicial examination of evidence and determination of legal claims in an adversary
proceeding.”
“Hearing of cause civil or criminal before a judge who has jurisdiction over it, according to
the law of land. Trial is to find out by due examination the truth of the point in issue or
question between the parties whereupon judgement may be given.”
Black’s law dictionary

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Research Methodology
1.2) Method of Research
The researcher has adopted a purely doctrinal method of research. The researcher has
made extensive use of the available resources at library of the Chanakya National Law
University and also the internet sources.
1.3) Aims and Objectives
The aim of the project is to present an overview of various aspects of Trial before Court
of Session through cases, decisions and suggestions and different writings and articles.
1.4) Research Questions
1. Whether the power to order police investigation under Section 156(3) is different
from the power to direct investigation conferred by Section 202(1)?
2. What are the components of fair procedure in the administration of criminal justice?
3. Whether every accused person has a right to be defended by a counsel of his choice?
4. What happens when the accused person chooses to plead guilty without appearing
before the magistrate?
1.5) Hypothesis
When a lower court convicts an accused and sentences him, the presumption that he is
innocent comes to an end.
1.6) Scope and Limitations
Though the study of commencement of proceedings is an immense project and pages
can be written over the topic but due to certain restrictions and limitations the
researcher has not been able to deal with the topic in great detail.
1.7) Sources of Data:
The following secondary sources of data have been used in the project-
1. Cases
2. Books
3. Journals
1.8) Method of Writing:
The method of writing followed in the course of this research paper is primarily
analytical.
1.9) Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this
research paper.

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2)COMPLAINT TO MAGISTRATE
2.1 ) Section 200.
Examination of complainant –

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the substance of such examination shall be
reduced to writing and shall be signed by the complainant and the witnesses, and also by the
Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not
examine the complainant and the witnesses-

(a) if a public servant acting or- purporting to act in the discharge of his official duties or a
Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under
section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under
section 192 after examining the complainant and the witnesses, the latter Magistrate need not
re- examine them.1

Chapter XV lays down the procedure which a Magistrate empowered to take cognizance of
an offence should follow when a complaint is made to him.

The examination of the complainant is a procedure which adds to the credibility of the
complaint at the initial stage. The complaint is the foundation of the entire proceedings. So, it
should have the test of credibility by examining the complainant on oath as regards the facts
of the complaint. The inquiry envisaged under section 200 to 203 is for ascertaining the truth
or falsehood of the complainant, that is, for ascertaining whether there is evidence in support
of the complaint so as to justify the issue of process, and not whether there is sufficient
ground for conviction. In a complaint case triable by a court of session it is not incumbent
upon the Magistrate to examine all prosecution witnesses before commitment of the case.
Where in a case exclusively triable by court of session, the Magistrate has chosen to proceed
under this section, has recorded the sworn statements of complaint and one witness and held
that there were sufficient grounds to proceed with the case and has accordingly issued the
process. The procedure adopted cannot be said to be erroneous at all.2

1
The Code of Criminal Procedure 1973, Section 200
2
Ratanlal & Dhirajlal, The Code of Criminal Procedure 848 (LexisNexis, Gurgaon, 2014)

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

According to the definition given in section 2 (d) a complaint can be oral or in writing and
there is nothing in that definition which may even impliedly mean that the complaint must be
made to the Magistrate personally. Nor does Section 200 or any other section require the
complainant to present a written complaint personally to the Magistrate. Therefore, a
complaint sent by post is valid and cognizance can be taken on such a complaint also.

However, whether the complaint is in writing or otherwise, the section [S. 200] makes it
obligatory to examine the complainant on oath.3

In case re Ramaswami Iyengar4 , the court held that ‘The examination of the complainant on
oath is not a mere formality and the dismissal of a complaint without such examination is
illegal’.

Locus standi is the general principal that any citizen can file a complaint under this section
before a competent Magistrate. A complaint can be filed by anybody whether he is an
aggrieved person or not. The exception to this principle is provided in section 195 to 199.
Chapter XVI would come to play only if the Magistrate had taken cognizance of an offence
on the complaint filed before him.5

2.1) Section 201.  

Procedure by Magistrate not competent to take cognizance of the case. - If the
complaint is made to a Magistrate who is not competent to take cognizance of the
offence, he shall, -

(a) if the complaint is in writing, return it for presentation to the proper Court with an
endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant to the proper Court.6

3
Supra Note 1 at 262
4
AIR 1992 Mad 443
5
Supra note 3 at 849

6
The Code of Criminal Procedure 1973, Section 201

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This section provides the procedure where a complaint is made to a Magistrate who is not
competent to take cognizance of the offence. It states that in such cases, the magistrate shall :-

I. if the complaint is in writing, return it for presentation to the proper court with an
endorsement to that effect;

II. if the complaint is not in writing, direct the complainant to the proper court.7

2.3) Section 202.

Postponement of issue of process

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take

cognizance or which has been made over to him under section 192, may, if he thinks fit,
postpone the issue of process against the accused, and either inquire into the case himself or
direct an investigation to be made by a police officer or by such other person as he thinks fit,
for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made, -

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by
the Court of Sessions; or

(b) where the complaint has not been made by a Court, unless the complainant and the
witnesses present (if any) have been examined on oath under section 200

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of
witness on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable
exclusively by the Court of Session, he shall call upon the complainant to produce all his
witnesses and examine them on oath

(3) If an investigation under sub-section (1) is made by a person not being a police officer,
he shall have for that investigation all the powers conferred by this Code on an officer in
charge of a police station except the power to arrest without warrant.8

7
Justice C. K. Thakker ‘Takwani’ and Mrs. M. C. Thakker, Takwani Criminal Procedure 80 (LexisNexis, Gurgaon,
4th edn., 2015)
8
The Code of Criminal Procedure 1973, Section 202

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The duty of a magistrate receiving a complaint is set out in this section and consists in
finding out whether there is any matter which calls for investigation by a criminal court. This
section empowers a magistrate if he sees reason to distrust the truth of a complaint of an
offence, to postpone the issue of process for compelling the attendance of the person
complained against and to direct a local investigation to be made by a police officer for the
purpose of deciding whether there is sufficient ground for proceeding instead of directing
investigation by a police officer, the magistrate may inquire into the case himself or direct
investigation by such other person as he thinks fit. There is no bar of taking cognizance after
examination of the witnesses.9

In Manhari Bhai v. Sailesh Bhai 10 the Supreme Court stated that Section 202 of the
CrPC has two objects:

i. it enables the magistrate to carefully scrutinize the allegations in the complaint with a
view to prevent a person named there in as an accused from being harassed if the
allegations are ill-founded; and

ii. it also enables the magistrate to find out whether there is some material to support the
allegations in the complaint.11

In Kamal Krishna v. State12 the court held that, the proviso to section 202(2) is intended to
enable the accused to have an overall picture of the case against him and to afford him a full
and fair opportunity of defending himself. this has been held to be mandatory. Some High
Courts held non-compliance with the proviso to Sec202(2) cannot be treated as “irregularity”
that could be cured under section 465. It was opined that non-compliance was likely not only
to mislead the accused but also to end in failure of justice.13

2.4) Section 203.

Dismissal of complaint -

If, after considering the statements on oath (if any) of the complainant and of the witnesses
and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of

9
Supra note 3 at 861
10
(2012) 10 SCC 517
11
Supra note 8 at 147
12
1977 Cri LJ 1492
13
Supra note 1 at 271

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opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and
in every such case he shall briefly record his reasons for so doing.14

Section 203 states that if after considering the statement on oath of the complainant and
witnesses, and the result of the investigation or inquiry, the magistrate is of the opinion that
there is no sufficient ground for proceeding, he shall dismiss the complaint by recording
reasons. Such order, however, must be made on sound judicial ground considering the merits
of the case. Section 203 consists of two parts. The first part lays down the materials which the
magistrate must consider and the second part states that if after considering those materials,
there is in his opinion, no sufficient for proceeding, he should dismiss the complaint.

Where the magistrate applies his judicial mind to the complaint and takes cognizance, he
may issue process directly. But before issuing process, he may direct investigation by a police
officer. If after the report of the police officer, the magistrate dismisses the complaint, such
dismissal is not dismissal at, ‘pre-cognizance stage’ but at ‘post-cognizance stage, i.e.at ‘pre-
issuances of process stage’.

In Chandra Deo Singh v Prakash Chandra Bose 15, the court held that, dismissal of
complaint by the Magistrate at the stage of inquiry under Sec 202 was set aside, the Supreme
Court laid down that the test was whether there was sufficient ground for proceeding and not
whether there was sufficient ground for conviction. The court further observed that there is
prima facie evidence, even though the accused may have a defence that the offence is
committed by some other persons, the matter has to be left to be decided by the appropriate
forum at the appropriate stage and issue of process can not be refused.16

3) COMMENCEMENT OF PROCEEDINGS
3.1) SECTION 204.

Issue of process –

(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient

ground for proceeding, and the case appears to be—

(a) a summons-case, he shall issue his summons for the attendance of the accused, or (b)
a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing

14
The Code of Criminal Procedure 1973, Section 203
15
AIR 1963 SC 1430
16
Supra note 1 at 272

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 COMMENCEMENT OF PROCEEDINGS

the accused to be brought or to appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having jurisdiction

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a
list of the prosecution witnesses has been filed

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant
issued under sub-section (1) shall be accompanied by a copy of such complaint

(4) When by any law for the time being in force any process-fees or other fees are payable,
no process shall be issued until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint

(5) Nothing in this section shall be deemed to affect the provisions of section 87.17

If the Magistrate taking cognizance of the offence considers that there is sufficient ground for
proceeding, then:

i. if the case appears to be a summons case, he shall issue his summons for the
attendance of the accused, or

ii. if the case appears to be a warrant case, he may issue a warrant, if he thinks fit, a
summons for causing the accused to be brought or to appear at a certain time before
such magistrate or (if he has no jurisdiction himself) before some other magistrate
having jurisdiction.18

while section 203 dealing with dismissal of the complaint makes a specific provision
about recording of reasons and obliges the magistrate to do so. Section 204 which deals with
the issue of process does not require the magistrate a speaking order, and it would be quit a
sufficient compliance with the provisions of law if it is found that the magistrate has applied
his mind to the facts of the case and has formed a judicial opinion that there is a sufficient
ground for proceeding with the case and for issuing process under a particular section.19

The purpose of section 204(2) is to convince the court that there are proper materials to
support the case and to enable the accused to know in advance what are the materials that the
complainant is likely to produce against him. If this purpose is served otherwise, the omission

17
The Code of Criminal Procedure 1973, Section 204
18
Supra note 1 at 275
19
Ibid at276

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 COMMENCEMENT OF PROCEEDINGS

to file a list of witnesses will not vitiate the proceedings. At the most the court may insist on a
list of witnesses being filed and refused to issue process before such list is made available.20

In has been held in K. M. Mathew v. State of Kerala,21 that even if process is issued by the
court, it is open to the accused to contend that there was no prima facie case against him. If
the court is satisfied, it may recall the order issuing process.22

3.2) Section 205.

Magistrate may dispense with personal attendance of accused -

(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense
with the personal attendance of the accused and permit him to appear by his pleader

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of
the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such
attendance in the manner hereinbefore provided.23

Section 205 enacts a salutary rule. It empowers the magistrate to dispense with the personal
attendance of the accused in certain circumstances. It provides that if the magistrate sees
reasons to do so, he may permit the accused to appear through his lawyer. At the same time,
however, it authorises the magistrate inquiring into or trying the case in his discretion to
enforce personal presence of the accused at any stage of the proceeding if necessary.24

The exemption from personal appearance under section 205 cannot be claimed by a person as
a matter of right, but while dealing with application for exemption the discretion of the court
is to be applied judiciously. The power to grant exemption should not be exercised in cases
wherein serious allegation are made against the accused. The accused should be present on all
the hearings when the material witnesses are examined25.

Even if the court has granted exemption from personal appearance, the court is not powerless
to ensure his attendance in terms of sub-section (2).26

20
Ibid at277
21
AIR 1992 SC 2206
22
Supra note 8 at 151
23
The Code of Criminal Procedure 1973, Section 205
24
Supra note 8 at 153
25
Supra note 3 at 908
26
Ibid at 915

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It is discretionary power of magistrate and must be exercised keeping in view the nature of
the proceedings, conduct of the accused, age, nature of allegation, circumstances and grounds
put forward by the accused and host of relevant consideration.27

In case of Shivani Sadanand v. State28 the court held that, exemption from personal
appearance would not be declined merely on the ground that the accused is a rich lady can
easily afford to come to Court on every date of hearing.

3.3) Section 206.

Special summons in cases of petty offence –

(1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be
summarily disposed of under section 260, the Magistrate shall, except where he is, for
reasons to be recorded in writing of a contrary opinion, issue summons to the accused
requiring him either to appear in person or by pleader before the Magistrate on a specified
date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to
transmit before the specified date, by post or by messenger to the Magistrate, the said plea in
writing and the amount of fine specified in the summons or if he desires to appear by pleader
and to plead guilty to the charge through such pleader, to authorise, in writing, the pleader to
plead guilty to the charge on his behalf and to pay the fine through such pleader:

Provided that the amount of the fine specified in such summons shall not exceed one
hundred rupees

(2) For the purposes of this section, "petty offence" means any offence punishable only with
fine not exceeding one thousand rupees, But does not include any offence so punishable
under the Motor Vehicles Act, 19391, or under any other law which provides for convicting
the accused person in his absence on a plea of guilty.

(3) The State Government may, by notification, specially empower any Magistrate to
exercise the powers conferred by sub-section (1) in relation to any offence which is
compoundable under section 320 or any offence punishable with imprisonment for a term not
exceeding three months, or with fine or with both where the Magistrate is of opinion that,
having regard to the facts and circumstances of the case, the imposition of fine only would
meet the ends of justice.29

27
Supra note 8 at 153
28
(2002) 97 DLT 443
29
The Code of Criminal Procedure 1973, Section 206

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An analysis of this section will bring out the following points: -

i. the section is applicable to such case

(a) where the offence alleged is punishable only with fine up to Rs 1000; or

(b) where the offence alleged is compoundable under section 320, or is punishable with
imprisonment up to 3 month or/and fine, and in the opinion of the Magistrate, specially
empowered by the State Government to exercise powers in respect of such offence, the
imposition of fine only would meet the ends of justice.

ii. The special procedure provided by this section is applicable only in such cases where
the Magistrate is of opinion that the case may be summarily disposed of under Section
260 or section 261.

iii. Even if the above two conditions are satisfied, yet the section will not be applicable in
a case where, for reasons to be recorded in writing, the Magistrate is not in favour of
issuing a special summons under this section.

iv. The special summons procedure will not apply n a case where the offence is
punishable under the motor vehicle act or under any other law which provides for
convicting the accused person in his absence on a plea of guilt.

v. The summons gives a choice to the accused person

(a) to appear in person

(b) to appear by a pleader, or

(c) to plead guilty to the charge without appearing before the magistrate.

vi. If the accused person chooses to plead guilty without appearing before the magistrate,
he is to transmit, within the specified time, the said plea in writing and the amount of
fine mentioned in the summon.

vii. If the accused chooses to appear by pleader and plead guilty through such leader, he
can do so by giving such authority to the pleader in writing and by paying the fine
through such pleader.

viii. The amount of fine to be specified in the summons shall not be more than Rs 1000.

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ix. The offence mentioned in (I) (b) above may also be dealt with in the same manner as
mentioned above only by a magistrate specially empowered but the State Government
in this behalf.

The Magistrate has thus wide discretion to dispose of petty cases quickly by way of summary
procedure.30

3.4) Section 207.

Supply to the accused of copy of police report and other documents

In any case where the proceeding has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of each of the following: -

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the
prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to
which a request for such exclusion has been made by the police officer under subsection (6)
of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the
police report under sub-section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to
in clause (iii) and considering the reasons given by the police officer for the request, direct
that a copy of that part of the statement or of such portion thereof as the Magistrate thinks
proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v)
is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he
will only be allowed to inspect it either personally or through pleader in Court.31

30
Supra note 1 at 280, 281
31
The Code of Criminal Procedure 1973, Section 207

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 COMMENCEMENT OF PROCEEDINGS

The object of furnishing the accused person with copies of the statements and documents as
mentioned above is to put him on notice of what he has to meet at the time of the inquiry or
trial and to prepare himself for his defence.

The right conferred on the accused is confined to the documents enlisted in the section and
does not extend to other documents. From the language of section 207, it appears that the
right to have copies of statements recorded by the police is only in respect of statements
recorded in the same case, and not in respect of statements recorded in any other case. 32 The
accused would not be entitled to bail under S.167(2), merely because the magistrate has not
supplied the copies under S. 207 within the prescribed period of 60/90 days as the case may
be. Merely because the provisions of S.207 Cr. P. C have not been complied with is no
ground for recalling the order for framing charge and discharging the accused.33

In case Viniyoga international v. state34, the court said that the accused person would have
the right albeit a non – statutory right, to complete disclosure of material at the threshold of a
trial, even in cases instituted otherwise than on a police report if the proceedings were
proceeded by police investigation.35

3.5) Section 208.

Supply of copies of statements and documents to accused in other cases triable by Court
of Session –

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate
issuing process under section 204 that the offence is triable exclusively by the Court of
Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each
of the following: -

(i) the statements recorded under section 200 or section 202, or all persons examined by the
Magistrate;

(ii) the statements and confessions, if any, recorded under section 161 or section164;

(iii) any documents produced before the Magistrate on which the prosecution proposes to
rely:

32
Supra note 1 at 282
33
Supra note 3 at918
34
1985 Cri LJ 761
35
Supra note 1 at 282

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 COMMENCEMENT OF PROCEEDINGS

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall,
instead of furnishing the accused with a copy thereof, direct that he will only be allowed to
inspect it either personally or through pleader in Court.36

This section provides for cases instituted otherwise then on a police report where the
Magistrate issuing process under S.204 is of opinion that the case is triable exclusively by a
court of session. In such a case he will furnish to the accused the document mentioned in
clause (i), (ii) and (iii).

This section gives sufficient indication that the enquiry envisaged in Section 202 is
mandatory if the offences disclosed are exclusively triable by Court of Session and the
Magistrate has to comply with this provision by furnishing copies of the documents
mentioned in the section.37

3.6) Section 209.

Commitment of case to Court of Session when offence is triable exclusively by it –

When in a case instituted on a police report or otherwise, the accused appears or is brought
before the Magistrate and it appears to the Magistrate that the offence is triable exclusively
by the Court of Session, he shall—

(a) commit, after complying with the provisions of section 207 or section 208, as the case
may be, the case to the Court of Session, and subject to the provisions of this Code relating to
bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody
during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are
to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.38

The object of enquiry under this section is two-fold. Firstly, to prevent commitment of cases
in which there is no reasonable ground for conviction, secondly to provide that no person
shall be committed for trial without being acquainted with the facts and circumstances of the
offence impugned against him and without giving him a fair opportunity of meeting them.
36
The Code of Criminal Procedure 1973, Section 208
37
Supra note 3 at 921
38
The Code of Criminal Procedure 1973, Section 209

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 COMMENCEMENT OF PROCEEDINGS

The discretion given to the Magistrate by this section is not taken away, because he has
issued process to the accused in regard to an offence exclusively triable by the court of
Session. This section is not controlled by S.204. They occupy separate fields each
independent of other.

The moment the Magistrate commits the case to the court of session under S.209 Cr.P.C., he
becomes functus officio so far, his power under Section 190 in respect of the offence for
which he has taken cognizance. Once he has taken cognizance and committed the case in a
police challani case, he cannot take cognizance of the same offence on the basis of private
complaint.39

3.7) Section 210.

Procedure to be followed when there is a complaint case and police investigation in

respect of the same offence.

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a
complaint case), it is made to appear to the Magistrate, during the course of the inquiry or
trial held by him, that an investigation by the police is in progress in relation to the offence
which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the
proceedings of such inquiry or trial and call for a report on the matter from the police officer
conducting the investigation .

(2) If a report is made by the investigating police officer under section 173 and on such report
cognizance of any offence is taken by the Magistrate against any person who is an accused in
the complaint case, the Magistrate shall inquire into or try together the complaint case and the
case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the
Magistrate does not take cognizance of any offence on the police report, he shall proceed
with the inquiry or trial, which was stayed by him, in accordance with the provisions of this
Code.40

This section provides that during an inquiry or trial relating to a complaint case, if it is
brought to the notice of the Magistrate that an investigation by the police is in progress in

39
Supra note 3 at 923
40
The Code of Criminal Procedure 1973, Section 210

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 COMMENCEMENT OF PROCEEDINGS

respect of the same offence, he shall stay the proceedings of the complaint case and call for a
report from the police officer conducting the investigation.

The object of enacting Section 210 is three-fold; firstly; it is intended to ensure that private
complainants do not interfere with the course of justice; secondly; it prevents harassment to
the accused twice; and thirdly; it obviates anomalies which might arise from taking
cognizance of the same offence more than once.

The following conditions must be satisfied before the provisions of Section 210 are applied:

i. There must be a complaint pending for inquiry or trial;

ii. Investigation by the police must be in progress in relation to the same offence;

iii. A report must have been made by the police officer under Section173; and

iv. The magistrate must have taken cognizance of an offence against a person who is
accused in the complaint case.41

4) RELATED CASES
Hausabai Tukaram Wable vs Waman Kondaji Ghogare42

The learned Magistrate in this case has passed the committal order as the case was triable by
the Court of Session. The learned Magistrate issued the process. He was quite competent to
act under Section 209 of the Criminal Procedure Code and no infirmity can be found in his
order.

The statement recorded under Section 200 or Section 202, of all persons examined by the
Magistrate. The other Sub-sections (2) and (3) are not relevant. Elaborating his contention,
Shri Shah contended that Section 208 provides, copy of the statement recorded under Section
200 or Section 202 is to be supplied: It indicates that it is not necessary, that in every case,
which is triable by the Court of Session, the procedure provided by Section 202(2) of the
Criminal Procedure Code is to be adopted. His contention was that the statement recorded
under Sub-section (1) covers both situations, i.e.. recording of statement under Section 200 as
well as investigation and inquiry as provided by Section 202. In a given case, if the
Magistrate after examining the complainant as required by Section 200, issues process, the
Magistrate in such a case can supply copy of that statement and this statement can have

41
Supra note 8 at 157
42
Supra note 8 at 157

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 COMMENCEMENT OF PROCEEDINGS

reference only to the examination of the complainant made by the Magistrate under Section
200 of the Criminal Procedure Code. In short, any statement recorded by the Magistrate in
the course of the examination of the complainant as required by Section 200 will be available
for supplying to the accused under Section 208 of the Criminal Procedure Code.43

Sanjay Gandhi v. union of India44

The supreme court stated that it is not open to the committal court to launch on a process of
satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once
vested in him under the earlier code but has been eliminated now under the present code.
Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to
frustrate the parliament`s purpose in remoulding S. 207-A (old code) into its present non-
discretionary shape. Expedition was intended by this change and this will be defeated
successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate
is in order. In our view, the narrow inspection hole through which the committing Magistrate
has to look at the case limits him merely to ascertain whether the case, as disclosed by the
police report, appears to the magistrate to show an offence triable solely by the Court of
session.45

JILE SINGH V. STATE OF U.P.46

It has been held by the supreme court that after the committal of some accused to the
session court on the basis of police report, the complainant can not by way of complaint
petition under section 200 get other accused arrayed by the session court.47

JAGDISH RAM V. STATE OF RAJASTHAN48

It has been ruled that Magistrate can take cognizance of an offence without passing a
speaking order. The magistrate’s reliance on the statement of the complaint to the police

43
Indiankanoon.org (Accessed on 4th February 2020; 8:10pm)
44
AIR1978 SC 514
45
Supra note 8 at 155
46
2012 Cri LJ 1603
47
Supra note 1 at 284
48
1989 Cri LJ 745(Raj).

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 COMMENCEMENT OF PROCEEDINGS

given in connection to the police given in connection with an earlier complaint was held
proper.49

5) RELEVANT PROVISIONS AS TO SESSIONS TRIAL

Chapter XVIII of Cr.P.C. starting with Sec.225 and ending with section 237 deals with
provisions governing the trial before a Court of Session. Sec.225 Cr.P.C. enjoins that in every
trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor.
Sec.193 Cr.P.C. provides that except as otherwise expressly provided by the Cr.P.C. or any
other law, 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 the Cr.P.C. There
are statutes like the N.D.P.S.Act, 1985, wherein it is provided that the special court manned
by a Sessions Judge shall take cognizance of an offence under the Act without the case being
committed to it. In such cases it may be permissible for the Sessions Court to take cognizance
of the offence without a committal of the case by the Magistrate concerned. But there are
other enactments such as the Scheduled Castes and Scheduled Tribes (Prevention of
atrocities) Act, 1989 which are silent regarding commitment. Trial under those statutes is also
to be conducted by a Court of Session. In Gangula Ashok v. State of A.P50 the Supreme
Court of India held that the mandate under Sec. 193 Cr.P.C. is applicable to the special courts
manned by Sessions Judges trying offences under the SC/ST (Prevention of atrocities) Act,
1989 and that those courts cannot take cognizance of the offences under the said Act without
the case being committed to them by the Magistrates concerned. When the accused appears
or is brought before court pursuant to the commitment of the case, the Public Prosecutor
should open the case by describing the charge brought against the accused and stating by
what evidence he proposes to prove the guilt of the accused. After considering the record of
the case and the documents submitted along with such record and after hearing the
submissions of the accused and the prosecution, if the judge considers that there are no
sufficient grounds for proceeding against the accused, he shall discharge the accused giving
reasons for doing so. If, however, the judge is of the opinion that there is ground for
presuming that the accused has committed the offence he may frame the charge against the
accused in writing. At this stage the Sessions Judge is entitled to consider only the documents
produced by the prosecution along with the charge sheet. The accused is not entitled to
produce or cause production of any document at this stage for the consideration of the

49
Supra note 1 at 265
50
2000(1) KLT 609

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 COMMENCEMENT OF PROCEEDINGS

Sessions Judge. The charges shall be read over to the accused and explained to him and he
shall be asked as to whether he pleads guilty of the offence charged or whether he claims to
be tried for the charge. If the judge is of opinion that notwithstanding the conclusions of the
police, the offence that is actually made out is not one exclusively triable by a court of
Sessions then he shall frame a charge against the accused and transfer the case for trial to the
Chief Judicial Magistrate who shall try the case as if it were a warrant case instituted on a
police report. Even though Sec.229 Cr.P.C. gives discretion to the judge to convict the
accused, in case he pleads guilty, the charge in a sessions case being for grave offences, it is
desirable that the accused is not straightaway convicted. The proper course would be to call
upon the prosecution to prove its case by adducing evidence. Where the accused does not
plead guilty the court shall call upon the prosecution to adduce evidence in support of its
case. Evidence for the prosecution shall be taken on a day-to-day basis. After the conclusion
of the prosecution evidence, the accused is to be examined under Sec.313 (1) (b) Cr.P.C. with
regard to the incriminating circumstances appearing against him in the evidence for the
prosecution. After the examination of the accused the court has to post the case for hearing
under Sec.232 Cr.P.C. If after hearing the prosecution and the defence the judge considers
that there is no evidence to indicate that the accused committed the offence with which he is
charged the judge can record an order of acquittal under Sec.232 Cr.P.C. This is a very vital
stage of the sessions trial and observance of Sec.232 Cr.P.C. and Sec. 233 Cr.P.C. at the
appropriate stage is mandatory.51

After hearing under Sec.232 if the accused is not acquitted there under, the accused shall be
called upon to enter on his defence and to adduce any evidence which he might have in
support thereof. After the conclusion of the defence evidence, if any, the case has to be taken
up for arguments. After hearing the arguments, the court has to pass the judgment in
accordance with Secs.353 and 354 Cr.P.C. If the judgment is one of conviction and the judge
does not proceed to invoke the benevolent provision of the Probation of Offenders Act, 1958,
he shall hear the accused on the question of sentence and then pass a sentence in accordance
with law. This in short is the procedure to be followed in the ordinary murder trials before a
Court of Session.

6) FAIR TRIAL AND ITS PRINCIPLES

In the battle against crime and delinquency, state and its officers cannot on any account
forsake the decency of state behaviour and have recourse to extra-legal methods for the sake
51
1992(2)KLT 227 – Sivamani v. State of Kerala

23
 COMMENCEMENT OF PROCEEDINGS

of detention of crimes and even criminals. State should not insist on good behaviour from
others when their own behaviour is blameworthy, unjust and illegal. Thus, in a democratic
society even the rights of the accused are sacrosanct, though accused of an offence, he does
not become a non-person. In the leading case of Kishore Singh Ravinder Dev v. State of
Rajasthan52, it was said that the laws of India i.e. Constitutional, Evidentiary and procedural
have made elaborate provisions for safeguarding the rights of accused with the view to
protect his (accused) dignity as a human being and giving him benefits of a just, fair and
impartial trail.

Articles 10 of the UDHR53 declares that everyone entitle in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of his legal rights and
obligation and of any criminal charges against him. Articles 14(1) of the international
covenants on civil and political rights provide that all people shall be equal before the court
and tribunals.

There are various facets to the right to a fair trial. The Hon’ble Supreme Court in the case of
Zahira Habibullah Sheikh & Anr vs State of Gujarat 54 has held that, “the principle of fair
trial now informs and energizes many areas of the law. It is reflected in numerous rules and
practices.... fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor
and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witnesses, or the cause which is being tried is eliminated.” The
concept of fair trial entails familiar triangulation of interests of the accused, the victim and
the society and it is the community that acts through the State and prosecuting agencies. Most
of these safeguards to ensure a fair trial are contained under the Code of Criminal Procedure,
1973 which contains and defines the procedure which has to be followed in criminal cases.

Section 304 in The Code of Criminal Procedure, 197355

Legal aid to accused at State expense in certain cases-

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader,
and where it appears to the Court that the accused has not sufficient means to engage a
pleader, the Court shall assign a pleader for his defence at the expense of the State.

52
1981 AIR 625, 1981 SCR (1) 995
53
https://www.un.org/en/universal-declaration-human-rights/ ( Accessed on 10th February 2020 : 6:58pm)
54
[(2004) 4 SCC 158]
55
https://indiankanoon.org/doc/690321/

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 COMMENCEMENT OF PROCEEDINGS

(2) The High Court may, with the previous approval of the State Government, make rules
providing for-

(a) the mode of selecting pleaders for defence under sub- section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government, and generally, for carrying out
the purposes of sub- section (1).

(3) The State Government may, by notification, direct that, as from such date as may be
specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation
to any class of trials before other Courts in the State as they apply in relation to trials before
Courts of Session.

The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to have the
assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases, where the
accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State.
Howsoever guilty the appellant upon the inquiry might have been, he is until convicted,
presumed to be innocent. It was the duty of the Court, having these cases in charge, to see
that he is denied no necessary incident of a fair trial. It is equally true that the absence of fair
and proper trial would be violation of fundamental principles of judicial procedure on
account of breach of mandatory provisions of Section 304 of Cr.P.C.

The Supreme Court in Sukh Das v. State of Arunachal Pradesh56 has held that a conviction
of the accused in a trial in which he was not provided legal aid would be set aside as being
violative of Article 21 of the Constitution. But where the accused pleads guilty without the
assistance of a counsel under the legal aid scheme and was convicted by the Magistrate it was
held that the trial and conviction was not vitiated because the Magistrate was fully satisfied
that the plea was voluntary, true and genuine.

In Ram Awadh v. State of U.P57, the Allahabad High Court held:

56
AIR 1986 SC 991
57
1999 CriLJ 4083

25
 COMMENCEMENT OF PROCEEDINGS

“The requirement of providing counsel to an accused at the State expense is not an empty
formality which may be not by merely appointing a counsel whatever his calibre may be.
When the law enjoins appointing a counsel to defend an accused, it means an effective
counsel, a counsel in real sense who can safeguard the interest of the accused in best possible
manner which is permissible under law. An accused facing charge of murder may be
sentenced to death or imprisonment for life and consequently his case should be handled by a
competent person and not by a novice or one who has no professional expertise. A duty is
cast upon the Judges before whom such indigent accused are facing trial for serious offence
and who are not able to engage a counsel, to appoint competent persons for their defence. It is
needless to emphasis that a Judge is not a prosecutor and his duty is to discern the truth so
that he is able to arrive at a correct conclusion. A defence lawyer plays an important role in
bringing out the truth before the Court by cross-examining the witnesses and placing relevant
materials or evidence. The absence of proper cross-examination may at times result in
miscarriage of justice and the Court has to guard against such an eventuality. ”

Where in a criminal appeal the council appointed by the Court for the accused does not turn
up at the time of hearing and the appeal is disposed of without hearing him, the case rightly
deserved to be remanded for fresh hearing of the appeal.

Where in a sessions trial the accused made a request for being provided the services of a
particular lawyer named by him at the State expenses as envisaged under Section 304 CrPC
but the State provided another lawyer to defend him, the High Court of Madhya Pradesh held
that it is not denied that an accused has the right to be defended by the lawyer of choice but
when it comes to the appointment of lawyer for the defence of accused at State expense, it
would be the choice of the Court and not of the accused to provide a lawyer for defending
him. The Court is under no obligation to provide to the accused, the lawyer of his choice if he
wants to be defended at the expenses of the State Government.

7) CONCLUSION AND SUGGESTIONS

In my concluding part, I would like to conclude that trial is one of the important step in
criminal proceeding. There are various types of trial but in the cases of warrant case there are
two types of trial is prescribed

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 COMMENCEMENT OF PROCEEDINGS

1) Trial by magistrate

2) Trial by Court of session

Magistrate has been given wide power under the code in matter of proceeding but at the mean
while it restrict the power of magistrate in order to protect the interest of accused and to
prevent abuse of power. Section 200 lays duty on magistrate to examine the complainant and
witness upon a complaint in order to prevent false and vexatious cases. Under section 202
magistrate has been granted discretion either to start proceeding or order an enquiry when a
complaint has been directly made before the magistrate. Section 201 provide guideline to
magistrate which he need to follow when a complaint has been made to him in matter of
which he is not competent to take action. Magistrate has power to dismiss the complaint if he
find that there is no sufficient ground for proceeding. If magistrate think that there is
sufficient ground for proceeding the trail the under section 204 he can issue process in the
complaint. Under section 205 its discretion of magistrate either to require attendance of
accuse or permit him to be represented by his pleader in his absence. In case of petty offence
magistrate has power to issue special summon under section 206. Under section 207 its duty
of magistrate to provide the accused with the necessary documents related with the case. The
accused has right to get copy of police report, FIR, statements of witnesses etc free of cost.
Section 209 provides procedure for commitment of a case by a magistrate to a court of
session where such case is exclusively triable by the court of session. It is immaterial whether
a case has been instituted on a police report or otherwise. Section 210 provide procedure to
be followed when there is a complaint case and police investigation in respect of the case is
in progress.

Depending upon the quantum of punishment which is given in section 28 of the Cr.P.C, some
cases whose punishment is Capital punishment, Life Imprisonment, Imprisonment for more
than 7 years are exclusively triable by Court of Session.

The division as is made for the trial for the criminal proceeding is because of severity of
punishment, to check the miscarriage of justice, and for speedy judgement.

"Equality, Justice and Liberty" is the trinity of fair trial recognised in the administration of
justice of India where the affluent and the "lowly and lost" have the equality of access to
justice in the administration of justice in general and the criminal justice system in particular.
This fundamental principle of fair trial is the backdrop of the International Covenants, and
enjoined in the Constitution of India as well as the criminal laws devising the criminal justice

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system of India. The beauty of the principles enshrined lies in the fact that much matter is
decocted into small words. The thrust is imperative to means (criminal procedures) which
must be trustworthy in order to have just ends.

The Constitution of India lays down a social policy concerning equal justice and free legal
aid "by suitable legislation or schemes or in any other way, to ensure that opportunities
securing justice are not denied to any citizen by reason of economic or other disabilities."
This social policy aims at: "Indigence should never be a ground for denying fair trial or equal
justice particular attention should be paid to appoint competent advocates, equal to handling
complex cases, not patronising gestures to raw entrants at the Bar.

Section 304 of the Cr.P.C, 1973 enables the Session Courts to assign the pleader for the
defence of the accused at the expense of the state provided he is unrepresented and the court
is satisfied that he has no sufficient means to engage a pleader. The selection of such pleader,
the facilities to be given to him by the court and his remuneration are to be governed by the
rules that may be framed by the High Court in this regard with previous approval of the State
Government. This facility also extends to any class of criminal trials before other courts as
indicated earlier to try criminal cases in the State as it applies in relation to trials before
Courts of Sessions.

Suggestions

 More appointments of judicial officers, ministerial staff and public prosecutors are
recommended. The delay is caused not only by our lengthy criminal procedure but also by
fewer people available on the other side. The ratio of judge to the population requires
fivefold more appointments than the available number. Today, appointments are yearly or
after every2 years in the judiciary to overcome the pendency of cases.
 The criminal procedure needs to be simplified for the common man. The party has a
Fundamental Right to get fair and speedy trial. This right is violated when the backlog
assigned to a judicial officer is also to be cleared off. It causes delay in the pronouncement of
judgment.
 The object of the Criminal Procedure Code, 1973 is further to ensure that an accused person
gets a full and fair trial along with certain well-established and well-understood canons of
law that accord with the notions of natural justice, which helps at every stage of the
proceedings. There are numerous provisions in the Code of Criminal Procedure, 1973 which
provides for early investigation and fair and speedy trial, in reality due to various factors

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such as overcrowded court dockets, absence of prosecution motivation, defence tendency to

prolong, speedy trial is yet an illusory goal. The criminal administration system has to mould
itself in order to ensure both fair and speedy trial to the parties.
 The vacancy created by the retirement of the judge should be filled six months prior or,
another option is retiring judge be allowed to remain in position till the successor joins.
Endeavour should be made to minimize the inconvenience to victims by securing privacy
and safety.
 The details of the proceedings at every stage must be provided to the accused(s) and the
victim(s) also.
 All the processes during litigation shall be served on the advocate for the respective parties
which they represent.

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BIBLIOGRAPHY

BOOKS:

 Dr. N.V Paranjape, The Code of Criminal Procedure, 2nd ed., Central Law Agency,

Allahabad, 2010

 M.D Chaturvedy, Code of Criminal Procedure, 4th ed., Allahabad Law Agency,

Faridabad, 2009

 R.V Kelkar, Criminal Procedure, 5th ed., Eastern Book Company, Lucknow, 2012

 Ratanlal And Dhirajlal, Code of Criminal Procedure, 17th ed., Lexisnexis

Butterworths Wadhwa & Co., Nagpur, 2008

LEGISLATIONS:

 Code of Criminal Procedure Act, 1973.

 Constitution of India, 1950

 Indian Evidence Act, 1872

DICTIONARIES REFERRED:

 Garner Black’s Law Dictionary

 Oxford Advanced Learners Dictionary

REPORTS:

 Law Commission of India, 41st report, 1969

 Law Commission of India, 69th report, 1977

 Justice Malimath Committee Report, 2003

30