Criminal Procedure Code – CrPC Notes

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Criminal Procedure Code – CrPC Notes

QUESTION`1:- Discuss the Rights of an arrested person?

ANSWER:- Cr P C gives powers to the police for arresting a person with such
power Cr P.C also provides rights to an arrested person. Rights of an arrested
are as follows –

1. Right to know the grounds of arrest – Section 50(1) – According to this

provision, every police officer or other person arresting any person without
warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or any other grounds for such arrest.

In case of Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be
notified of grounds of arrest is a precious right of the arrested person. This
allows him to move the proper court for bail, make a writ petition for habeas
corpus, or make appropriate arrangements for his defence.

2. Right to be informed of the provision for bail – Section 50(2) – Section 50(2),
provides that where a police officer arrests any person other than a person
accused of a non-bailable offence without warrant, he shall inform the person
arrested that he is entitled to be released on bail and that he may arrange for
sureties on his behalf.
3. Right to be taken to magistrate without delay – Section 57 – of CrPC. It says
that, No police officer shall detain in custody a person arrested without warrant
for a longer period than under all the circumstances of the case is reasonable,
and such period shall not, in the absence of a special order of a Magistrate under
Section 167, exceed twenty four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate’s court.

In case of, Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon
the State and its police to ensure that this constitutional and legal requirement
of bringing an arrested person before a judicial magistrate within 24 hours
should be met. This allows magistrates to keep a check on the police
investigation. It is essential that the magistrates should try to enforce this
requirement and when they find it disobeyed, they should come heavily upon
the police.

Further, in case of, Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police
officer fails to produce an arrested person before a magistrate within 24 hours,
he shall be held guilty of wrongful detention.

4. Right to consult Legal Practitioner – Section 303- Under section 303 it is

mentioned that any person accused of offence before a Criminal Court or against
whom proceedings are instituted under this Code, may have right to be
defended by a pleader of his choice.

5. Right to free legal aid – Section 304 – Section 304 provides that where, in a
trial before the Court of Session, the accused is not represented by a pleader,
and where 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. In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC, SC
has held that non-compliance of this requirement or failure to inform the
accused of this right would spoil the trial entailing setting aside of the conviction
and sentence. The right of an accused to consult his lawyer begins from the
moment of his arrest. The consultation with the lawyer may be within the
presence of a police officer, but not within the police officer’s hearing. SC also
held that it is the duty on all courts and magistrates to inform the indegent
person about his right to get free legal aid.
https://www.lawordo.com/
6. Right to be informed about the right to inform of his arrest to his relative or
friend – Section 50 A (1) provides that once the arrested person is brought to
the police station, the police officer must inform a relative or a friend, or any
other person of the arrested person’s choice, about his arrest. He must also tell
the place where the arrested person has been kept. Further, as per Section 50 A
(3) he must note down the name and address of the person who was informed
about the arrest. To make sure that there is no violation of this right, section 50
A (4) makes it a duty of the magistrate to verify that the provisions of this
section were complied with. This allows the arrested person and his well wishers
to take appropriate legal steps to secure his release.

7. Right to be examined by a medical practitioner – While Section 53 allows a

police officer to get the accused examined by a registered medical practitioner,
Section 54(1) gives the accused a right to get himself examined by a registered
medical practitioner. According to Section 54 (1), when a person who is
arrested, whether on a charge or otherwise, alleges, at the time when he is
produced before a Magistrate or at any time during, the period of his detention
in custody that the examination of his body will afford evidence which will
disprove the commission by him of any offence or which Magistrate shall, if
requested by the arrested person so to do direct the examination of’ the body of
such person by a registered medical practitioner unless the Magistrate considers
that the request is made for the purpose of vexation or delay or for defeating
the ends of Justice.

In case of Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the
arrested accused person must be informed by the magistrate about his right to
be medically examined in terms of Section 54(1).

QUESTION 2:- Elaborate the trial of Warrant of cases by a

Magistrate?
Answer:- There are two different procedures prescribed for trial of warrant
cases by a Magistrate:
1) Procedure of trial of warrant cases instituted on a police report.

2) Procedure of trial of warrant cases instituted otherwise than on a police

report.

Sections 238 to 243 both inclusive relate exclusively to the procedure of trials in
cases initiated on police report whereas sections 244 to 247, both inclusive,
relate exclusively to the procedure in cases initiated otherwise than on police
report. Section 248 relates to both.

A.-Cases instituted on a police report

Section 238 – Compliance with section 207

When in any warrant-case instituted on a police report, the accused appears or

is brought before a Magistrate at the commencement of the trial; the Magistrate
shall satisfy himself that he has complied with the provisions of section 207 of
the act.

A case instituted upon a police report means a case initiated on a charge-sheet

submitted by the police officer in a cognizable case. Any other case initiated in
any other manner is a case initiated otherwise-than on a police report.

Before proceeding with the case, the Magistrate has to ascertain as to whether
the copies of documents require to be supplied to the accused according to
Section 207 have been complied with. If they have not been so complied, the
Magistrate should get them supplied and then proceed with the case.

If a warrant case is tried as a summons case, the trial vitiates.

Section 239 – When accused shall be discharged

If, upon considering the police report and the documents sent with it under
section 173 and making such examination of the accused as the Magistrate
thinks necessary and after giving the prosecution and the accused an
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.

Under Section 239, Magistrate has the power to discharge the accused if upon
the consideration of the documents sent to him under Section 173 and the
examination of the accused, if any, he thinks necessary and after giving an
opportunity to the prosecution and the accused being heard, he considers that
the charge against the accused is groundless. If on the consideration of the
documents and after the examination of the accused and after hearing the
prosecution and the defence, the Magistrate is of opinion that there is a ground
for presuming that the accused has committed an offence triable under this
chapter with such Magistrate is competent to try and which he can adequately
punish, he shall frame in writing a charge.

The examination of the accused under sections 239 and 240 is meant only to get
explanation from the accused of the incriminating circumstances appearing in
the documents sent up under Section 173. It is discretionary with the Magistrate
to examine the accused. It is not obligatory to examine an accused.

The Magistrate has to record reasons for discharging the accused. Failure to
record the reasons makes the order illegal. The recording of reasons for
discharge is essential so that the Higher Courts may be able to know as to be of
opinion that the charge should not be framed and the accused should be
discharged.

Section 240 – Framing of charge

If, upon such consideration examination and hearing, the Magistrate is of opinion
that there is ground for presuming that the accused has committed an offence
triable under this Chapter, which such Magistrate is competent to try and which,
in his opinion could be adequately punished by him, he shall frame in writing a
charge against the accused.
Then, the charge shall be read and explained to the accused, and he shall be
asked whether he pleads guilty of the offence charged or claims to be tried.

A Magistrate shall frame a charge if there is a ground for presuming that the
accused has committed an offence, the offence is triable under this chapter, the
Magistrate is competent to try it and the accused can be adequately punished by
him.

A Magistrate can frame a charge in a case where is ground for presuming that
the accused has committed an offence triable under this Chapter, that is to say,
The offence must be punishable to imprisonment for a period exceeding two
years. If the offence which appears to be triable as a summon case, no charge
should be framed, though the accused may be tried without framing any charge
as a summons case, similarly if the case is triable as a Sessions trial, no charge
can be framed by the Magistrate.

A Magistrate can frame a charge under Section 240 only when he is competent
to try the case. A Magistrate may not be competent to try the case if the offence
has been committed beyond the local jurisdiction of his Court.

The charge framed shall be read over and explained to the accused and he
should be asked whether he pleads guilty or not. Charge shall be read over the
accused and not the pleader. It has been held that the charge may be explained
to the counsel of the accused and he may be allowed to plead or not to plead on
behalf of the accused. But this view is not correct. The charge has to be
explained to the accused and the accused has to plead guilty or not.

Section 241 – Conviction on plea of guilty

If the accused pleads guilty, the Magistrate shall record the plea and may, on his
discretion, convict him thereon.

If the accused pleads guilty, the Magistrate should record his plea in his own
words and clearly.
The Magistrate has discretion to convict an accused on his plea of guilty. But the
plea of guilty must be clear. It is admission of all the facts on which the charge is
founded and also the admission of guilt in respect of them. When the accused
pleaded not guilty at the time of charge being read over to him and the
Magistrate proceeded to take evidence but afterwards the accused accepted the
guilt, it was held that he could not be convicted under Section 241.

The plea of the accused must be recorded as much as possible in the very words
of the accused so that the higher courts may determine whether the plea of the
accused really amounted to a confession of the guilt.

Section 242 – Evidence for prosecution

If the accused refuses to plead or does not plead, or claims to be tried or the
Magistrate does not convict the accused under section 241 the Magistrate shall
fix a date for the examination of witnesses.

Provided that the Magistrate shall supply in advance to the accused, the
statement of witnesses recorded during investigation by the police.

The Magistrate may, on the application of the prosecution, issue a summons to

any witnesses directing him to attend or to produce any document or other
thing,

On the date so fixed, the Magistrate shall proceed to take all such evidence as
may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to
be deferred until any other witness or witnesses have been examined or recall
any witness for further cross-examination

When the accused does not plead guilty or claims to be tried or even on plea of
guilty the Magistrate does not convict him, he shall fix a date for the
examination of witnesses. It is for the benefit of the accused that this provision
for fixing a date has been provided. If the Magistrate after the statement of
accused not pleading guilty, straight way proceeds with the case, the accused
may be prejudiced and such proceeding certainly makes the trial illegal.

On the date so fixed, the Magistrate is bound to take all the evidence by the
prosecution. The provision of Section 242(3) is mandatory. There can be no
doubt that the Magistrate is bound to take all such evidence as may be produced
in support of the prosecution. A Magistrate is not competent to acquit the
accused without taking all the evidence which is offered by the prosecution. If he
does acquit without taking all the evidence, the order is illegal.

Under section 242(3) which is in very wide term, the Magistrate is bound to take
all such evidence as may be produced in support of the prosecution. There is
ample authority in support of the view that if in the course of the trial, the
prosecution thinks it necessary to file additional documents or statements of
witnesses on which they proposes to rely, the non-supply of copies does not
prevent them from filing the documents or examining the witnesses.

It is not the bounden duty of the court to compel the attendance of the
witnesses suo moto and examine them under Section 311, even if the
prosecution does not care to produce them. The court may help the prosecution
in securing the attendance of the witnesses. The prosecution has to give the list
of the witnesses and pray for issue of summons and the summons being
infructuous, the prosecution has to approach the Court for warrant etc. If the
prosecution fails to take steps and does not produce evidence, the court may
close the prosecution evidence and proceed further and may acquit the accused.

The term examination means the examination, cross-examination and re-

examination. Consequently, when a witness is examined by the prosecution on
the date fixed for taking evidence, the witness has to be cross-examined by the
accused. But in suitable cases the Magistrate may postpone the cross-
examination of a witness who has been examined by the prosecution till other
witness or witnesses have been examined. This provision is for the benefit of the
accused to give him opportunity to cross-examine all the witnesses in
continuation.

Section 243 – Evidence for defence

The accused shall then be called upon to enter upon his defence and produce his
evidence; and if the accused puts in any written statement, the Magistrate shall
file it with the record.

If the accused, after he had entered upon his defence, applies to the Magistrate
to issue any process for compelling the attendance of any witness for the
purpose of examination or cross-examination, or the production of any
document or other thing, the Magistrate shall issue such process unless he
considers that such application should be refused on the ground that it is made
for the purpose of vexation or delay or for defeating the ends of justice and such
ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of
cross-examining any witness before entering on his defence, the attendance of
such witness shall not be compelled under this section, unless the Magistrate is
satisfied that it is necessary for the ends of justice.

The Magistrate may, before summoning any witness on an application under

Sub-Section (2), require that the reasonable expenses incurred by the witness in
attending for the purposes of the trial be deposited in Court.

B.-Cases instituted otherwise than on police report

Section 244 – Evidence for prosecution

When, in any warrant-case instituted otherwise than on a police report the

accused appears or is brought before a Magistrate, the Magistrate shall proceed
to hear the prosecution and take all such evidence as may be produced in
support of the prosecution. The Magistrate may, on the application of the
prosecution, issue a summons to any of its witnesses directing him to attend or
to produce any document or other thing.

Section 245 – When accused shall be discharged

If, upon taking all the evidence referred to in section 244 the Magistrate
considers, for reasons to be recorded, that no case against the accused has
been made out which, if unrebutted, would warrant his conviction, the
Magistrate shall discharge him.

Nothing in this section shall be deemed to prevent a Magistrate from discharging

the accused at any previous stage of the case if, for reasons to be recorded by
such Magistrate, he considers the charge to be groundless.

Section 246 – Procedure where accused is not discharged.

If, when such evidence has been taken, or at any previous stage of the case, the
Magistrate is of opinion that there is ground for presuming that the accused has
committed an offence triable under this Chapter, which such Magistrate is
competent to try and which, in his opinion, could be adequately punished by
him, he shall frame in writing a charge against the accused.

The charge shall then be read and explained to the accused, and he shall be
asked whether he pleads guilty or has any defence to make.

If the accused pleads guilty, the Magistrate shall record the plea, and may, in his
discretion, convict him thereon.

If the accused refuses to plead, or does not plead or claims to be tried or if the
accused is not convicted under Sub-Section (3) he shall be required to stale, at
the commencement of the next hearing of the case or, if the Magistrate for
reasons to be recorded in writing so thinks fit, forthwith whether he wishes to
cross-examine any, and if so, which, of the witnesses for the prosecution whose
evidence has been taken.
If he says he does so wish, the witnesses named by him shall be recalled and,
after cross-examination and re-examination (if any), they shall be discharged.

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.

Section 247 – Evidence for defence.

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 – Acquittal or conviction

If, in any case under this Chapter in which a charge has been framed, the
Magistrate finds the accused not guilty, he shall record an order of acquittal.

Where, in any case under this Chapter, the Magistrate finds the accused guilty,
hut does not proceed in accordance with the provisions of section 325 or section
360, he shall, after hearing the accused on the question of sentence, pass
sentence upon him according to law.

Where, in any case under this Chapter, a previous conviction is charged under
the provisions of Sub-Section (7) of section 211 and the accused does not admit
that he has been previously convicted as alleged in the charge, the Magistrate
may, after he has convicted the said accused, take evidence in respect of the
alleged previous conviction, and shall record a finding thereon:

Provided that no such charge shall be read out by the Magistrate nor shall the
accused be asked to plead thereto nor shall the previous conviction be referred
to by the prosecution or in any evidence adduced by it, unless and until the
accused has been convicted under Sub-Section (2).
Section 249 – Absence of complainant

When the proceedings have been instituted upon complaint, and on any day
fixed for the hearing of the case, the complainant is absent, and the offence may
be lawfully compounded or is not a cognizable offence, the Magistrate may, in
his discretion, notwithstanding anything hereinbefore contained, at any time
before the charge has been framed, discharge the accused.

Section 250 – Compensation for accusation without reasonable cause.

If, in any case instituted upon complaint or upon information given to a police
officer or to a Magistrate, one or more persons is or are accused before a
Magistrate of any offence triable by a Magistrate, and the Magistrate by whom
the case is heard discharges or acquits all or any of the accused, and is of
opinion that there was no reasonable ground for making the accusation against
them or any of them, the Magistrate may, by his order of discharge or acquittal,
if the person upon whose complaint or information the accusation was made is
present, call upon him forthwith to show cause why he should not pay
compensation to such accused or to each or any of such accused when there are
more than one or, if such person is not present direct the issue of a summons to
him to appear and show cause as aforesaid.

The Magistrate shall record and consider any cause which such complainant or
informant may show, and if he is satisfied that there was no reasonable ground
for making the accusation, may, for reasons to be recorded, make an order that
compensation to such amount not exceeding the amount of fine he is
empowered to impose, as he may determine, be paid by such complainant or
informant to the accused or to each or any of them.

The Magistrate may, by the order directing payment of the compensation under
Sub-Section (2) further order that, in default of payment, the person ordered to
pay such compensation shall under go simple imprisonment for a period not
exceeding thirty days.
When any person is imprisoned under Sub-Section (3), the provisions of sections
68 and 69 of the Indian Penal Code (45 of 1860) shall, so far as may be, apply.

No person who has been directed to pay compensation under this section shall,
by reason of such order, be exempted from any civil or criminal liability in
respect of the complaint made or information given by him:

Provided that any amount paid to an accused person under this section shall be
taken into account in awarding compensation to such person in any subsequent
civil suit relating to the same matter.

A complainant or informant who has been ordered under Sub-Section (2) by a

Magistrate of the second class to pay compensation exceeding one hundred
rupees, may appeal from the order as if such complainant or informant had been
convicted on a trial held by such Magistrate.

When an order for payment of compensation to an accused person is made in a

case which is subject to appeal under Sub-Section (6), the compensation shall
not be paid to him before the period allowed for the presentation of the appeal
has elapsed, or, if an appeal is presented, before the appeal has been decided;
and where such order is made in a case which is not so subject to appeal the
compensation shall not be paid before the expiration of one month from the date
of the order.

The provisions of this section apply to summons-cases as well as to warrant

cases.

QUESTION 3:- Discuss the provisions of tender of pardon?

SECTION 306-Tender of pardon to accomplice

The purpose of this section is to grant pardon to an accused where a serious

offence is alleged to have been committed by many persons so that with the
help of the evidence of such accused, the offenders may be punished.
The pardon can be granted when the offences are triable by the Court of Session
or by a court of special Judge appointed under the Criminal Law (Amendment)
Act 1952 and the offences punishable with imprisonment which may extend to 7
years or with a more severe sentence nor exclusively triable by a Court of
Session. The provision of this section cannot be enlarged. Pardon can only be
tendered with respect to the categories of offences mentioned in the section and
to none others. The jurisdiction to tender pardon is strictly limited to the
offences mentioned in the section.

The Chief Judicial Magistrate or a Metropolitan Magistrate or the Magistrate of

first class may grant pardon with the only difference that the Chief Judicial
Magistrate or a Metropolitan Magistrate may grant pardon in any case whether
they have taken cognizance of it or not. They may grant pardon at any stage of
investigation or inquiry into or trial of the offence even if the trial is proceeding
before the Court of Session. But the Magistrate of first class can grant pardon
only in the cases which he is enquiring or trying and he can grant pardon only at
any stage of the inquiry or trial. A Magistrate of First Class cannot grant pardon
at the stage of the investigation, nor can do so in a case which is not before him
for inquiry or trial.

The only conditions required for granting pardon are that the accused should
make a thorough and complete disclosure of all the facts within his knowledge
throwing light upon the offence or the offences about which he promises to give
evidence. The Magistrate granting pardon has power to add any condition. The
Magistrate may make a condition that if the approver fails to make a full
disclosure of the facts, he may be prosecuted.

It is discretionary with the Magistrate to grant pardon. But he should exercise

the power in exceptional circumstances. If no approver is examined as a witness
the other accused will go free, pardon may be granted. When there are a
number of witnesses, of fact, the pardon should not be granted to an accused.
In any case no pardon should be granted to the main offender.

It often happens that the police does not charge sheet one of the accused and
examines him as a witness. The evidence of such a witness is not irrelevant, but
such course should be deprecated.

The Magistrate granting pardon shall explain all the conditions to the accused.
He has to make it clear to the accused that if he does not fulfill the conditions
and if he conceals any material fact or if he tells anything false, he may be tried.
The Magistrate shall record his reasons and should also mention as to whether
the pardon was accepted. The Magistrate has also to supply a copy of this
procedure to the accused if asked for. If the manner of pardon is substantially
complied with, though it is not very regularly recorded, the procedure is legal.

Before an accused can be examined against a co-accused not only that a pardon
should be tendered to him, but it is necessary that he should accept it. If the
pardon is not accepted by a person, his position remains that of an accused. The
acceptance of pardon need not be in writing. It may be evidenced by the
conduct. A person can be said to have accepted a pardon only when he sticks to
the conditions imposed.

The Magistrate tendering pardon has to record the reason for granting pardon.
The reasons that the accused is granted pardon so that evidence may be
available against the other accused is a good reason. The giving of the reason is
not a condition precedent for granting a pardon. It is only a matter of procedure
and the failure to record reason is only an irregularity which does not affect the
pardon. It has been held that recording of reason is mandatory provision. If the
reasons are not recorded the order of Magistrate can be quashed.

The expression ‘any person supposed to have been directly or indirectly

concerned in or privy to an offence’ does not necessarily mean a person against
whom a charge sheet has been submitted nor is it necessary that he should
know exactly what crime has been committed. The ground of granting a pardon
is not the extent of complicity of a person in the offence. The fact that the
person concerned does not implicate himself to the same extent as he does
others is no bar in granting a pardon.
The pardon granted is not limited to the offences for which the trial is being
held, rather it extends to all the offences which were so connected with the
offence for which the pardon was tendered. The approver on acceptance of the
pardon is required to make a complete disclosure of all the facts within his
knowledge bearing upon the offence or offences as to which he gave evidence.
Pardon protects the offender from being prosecuted for the offence for which
pardon is granted.

In some cases pardon once granted and accepted cannot be withdrawn.

If the person to whom pardon is tendered has not been released on bail prior to
granting him pardon, he shall be detained in custody until the termination of the
trial. The provision to keep him in custody is mandatory and neither the
Magistrate nor the Judge nor even the High Court can grant him bail.

Custody, under this section, means a judicial custody. A person who is granted
pardon has not to be sent to police custody. He has to be kept in judicial lock-up.

Even if the pardon has been refused at one stage, a further request can be
entertained and considered only if fresh or additional facts are placed by the
parties concerned.

A tender of pardon and its acceptance is a matter entirely between court

concerned and the person to whom it is made. The other person against whom
an investigation or enquiry is going on in connection with the same offence have
no right to object to the making the tender of pardon.

Under the old Code, it was held by the Delhi High Court that the order tendering
the pardon was an administrative order and so it was not revisable. This case
was over ruled and the order was revisable. Under the present law, The order
tendering the pardon and order declining to tender pardon are interlocutory
orders and so no revision lies.

There are two ways open to the prosecution to examine a co-accused against
the others without granting him pardon. The public prosecutor may withdraw
from the prosecution against that accused under Section 321, get him
discharged and then examine him. The second course open to the prosecution is
to separate the case of that particular accused from that of the other accused
and then examine him in the case against the other accused. The police carrying
investigation may make an accused a witness by giving him assurance that he
would not be prosecuted. A person liable to be summoned under Section 319 is
a competent witness if not summoned as an accused under that Section 55.

The release of the approver on bail by the High Court does neither affect pardon
granted to him nor the trial.

SECTION 307-Power to direct tender of pardon

At any time after commitment of a case, but before judgment is passed, the
Court to which the commitment is made may, with a view to obtaining at the
trial the evidence of any person supposed to have been directly or indirectly
concerned in, or privy to, any such offence, tender a pardon on the same
condition to such person.

SECTION 308-Trial of person not complying with conditions of pardon

The prosecution of an approver can be started only on the certificate of the

public prosecutor to the effect that the person has not complied with the
conditions of the pardon by willfully concealing anything essential fact or by
giving false evidence. The sole basis for the prosecution of the approver is the
certificate of the public prosecutor.

The provision of this section pre-supposes that the pardon which had been
tendered was accepted and thereafter the approver has willfully concealed
anything essential or has given false evidence. There must be acceptance of the
pardon and the person must be examined. If the pardon has not been accepted,
the trial of the approver without certificate is illegal and it is also illegal to try
him with other accused.
The approver may be tried for the offence in respect of which pardon has been
tendered, or the other offence which might have been committed in connection
with the same matter and for giving false evidence.

The trial of a person who has not complied with the condition of the provision
must not be held jointly with other accused of the case, but if the pardon has
not been accepted by him, he may be jointly tried.

The trial for perjury cannot be started without the sanction of the High Court.
The High Court is not bound to accord the sanction in each and every case. The
High Court before granting sanction should consider all the circumstances in the
case and decide the main question whether the previous statement or the
confession was true and voluntary. If it is of opinion that the previous statement
and confession was true, the sanction may be accorded. If the statement at the
time of pardon is not true, the inference may be that the statement was
obtained by force and sanction is not to be granted.

For the trial of an approver only the sanction of the High Court is needed.
Neither an enquiry under Section 340 nor a complaint by the Court under
Section 195 is needed. The approver shall be tried on the charge-sheet
submitted by the police.

At the trial of the approver, the statement at the time of accepting the pardon,
the statement made by the approver under section 164 after accepting the
pardon and the statement at the committal proceeding and at the trial shall be
relevant against the accused at his trial for perjury. The statement to be
admissible under this section should be made after the acceptance of the
pardon.

The accused has a right to plead at the trial that he fulfilled the conditions of the
pardon and if he so pleads, the burden to prove that he did not comply with the
pardon either by willful concealment of essential fact or giving false evidence,
lies on the prosecution.
A Sessions Judge or Magistrate trying an approver has to ask the approver
whether he pleads that he had complied with the conditions of the pardon. The
Judge has to put this question before he examines the witnesses; failure to
follow this procedure would vitiate the trial. Sub-sections (4) and (5) of Section
308 make it clear that in the trial of an approver who has forfeited the pardon,
the question whether he pleads that the conditions of pardon have been
complied with by him has to be first decided before he is tried for original
offence. It is imperative for the Sessions Courts to ask the accused whether he
pleads that the conditions of pardon have been complied with before the charge
for the original offence is read out. If he so pleads, a clear finding on the
question of compliance or non-compliance of the conditions of pardon would be
condition precedent to his protection for the original offence after he forfeits his
pardon.

The Court has power to record the plea of the approver and for the sake of
justice, it has to record it in full.

The court after recording the plea of the approver will proceed with the trial, but
before passing any judgment, it has to decide whether or not the approver has
complied with the conditions of the pardon.

If the Court comes to the conclusion that the prosecution could not prove that
the approver did not comply with the conditions of the pardon, it has to pass a
judgment of acquittal. Only when the finding is against the approver, he may
convict the accused.

Question4. What do you mean by FIR? In what circumstances a

Magistrate can make an order for investigation of an offence?
OR What are the ingredient of FIR? What are the effects of
delay in Qling FIR?

INTRODCTION:-First information report and investigation plays an important

role in administering of criminal justice. It is expected that it should be recorded
with utmost care and caution. It should be recorded without any delay so that
manipulation of facts does not arise. FIR & Investigation determines that a
prima facie case exist against the accused or not. Sections 154 of Cr.P.C.-1973
described in detail about FIR, but fi word is not as such written in tis section.

ESSENTIAL ELEMENTS OF F.I.R.

Although the definition of FIR is no given in the Cr.P.C. however it may be as

follows:-

i) It is information which is given at the first stage to the Police Officer

In- charge of the Police station.

ii) Information must relate to a cognizable offence.

iii) It is on the basis of this information that investigation into the offence
commences.

v) The FIR could be in any type i.e. written or oral. It can also be given
on telephone. Sunil v/s State of MP, 1997.

It is essential that a detailed explanation of the happening should be given in

FIR. In a case of Navratan Mahanto v/s State of Bihar-1980, the court observed
that the prosecution cannot be dismissed merely on the basis that FIR does not
contains the complete explanation of happening as only gist of the happening in
factual position needs to be mentioned.

Section 154 says- As soon as the Officer-in-charge receives information of

commission of a cognizable offence entry to this effect shall & immediately be
made in the Register maintained for this purpose without delay.

If any information is given orally, it should be recorded and then to read and
obtained the signature of the person giving information.

In a case of State of A.P v/s P. Ramulu, 1993, the court observed that FIR
cannot be refused to be recorded on the ground that the offence was committed
not within the jurisdiction.

There should be no delay in registering FIR (Gnash Bhawan Pated v/s State of
Maharashtra, 1979.).

CIRCUMSTANCES WHEN MAGISTRATE ORDERS FOR INVESTIGATION: –

Investigation begins with the FIR. If the FIR is regarding any non-cognizable
offence then such information shall be recorded in the register maintained for
this purpose and the person who is giving the information will be referred to the
Magistrate. In other words investigation cannot be done without the order of the
Magistrate.

Section 155 of the Code of criminal procedure provides that:-

1. No Police Officer shall investigate a Non-cognizable case without the order

of the Magistrate having power to try such case or commit the case for trial.

2. Any Police officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as an
Officer–in-charge of a police station may exercise in cognizable case.

3. Where a case relates to two or more offences of which at least one is

cognizable, the same shall be deemed to be a cognizable case, notwithstanding
that the other offences are non-cognizable.

4. An investigation in a non-cognizable offence made under the order of

Magistrate is treated as in investigation under chapter-XII and the report will be
submitted to the Magistrate under section 173(2).

In cases of cognizable Offences, there is no need of the orders of the Magistrate

to begin the investigation. However it has also been made clear by the Supreme
Court a new provision under the code under section 155(4) which incorporates
a view of Supreme Court that 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, in-spite of the fact that other offences are non-cognizable, where there are
both cognizable and non-cognizable offences mixed together the Police Officer
can investigate even if there is single cognizable offence.
https://www.lawordo.com/
5. Discuss the provisions relating to Information to the police
and their powers to investigate.
INTRODUCTION: – Section 154 speaks of information relating to the commission
of a cognizable offence given to an officer-in-charge of a Police Station. This
section has a three-fold object that to inform the District Magistrate and Supdtt.
Of Police who are responsible for maintaining peace and safety of the District. It
is also pertinent to brought it in the notice of judicial officers before whom the
case is ultimately tried. And the most important to safeguard the accused
against subsequent variations or additions.

1. INFORMATION IN CONIZABE CASES:- Every information relating to the

commission of a cognizable offence if given orally to an officer-in-charge of a
Police Station, shall be reduced to writing by him or under his direction and be
read over to the informant. Every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the person giving it. The
officers receiving make the entries of the substance thereof in the prescribed
Register available with him.

2. Copy of the Information as recorded shall be given forthwith free of cost to

the informant.

3. Refusal to record the information:- If any officer-in-charge of police station

refuses to record the information the informant may send to substance of such
information to the Supdtt. Of Police concern who further on his satisfaction will
investigate the case himself or direct to his subordinate.

4. The information given to Police Office and reduced to writing as required

under the section is called FIR. When any information discosing cognizable
offence is laid before the Officer I/c of a Police Station, he has no option but to
register the case of that base as held in State of Haryana v/s Ch.Bhajan Lal-
1992.In a case of Gurpreet Singh v/s State of Punjab-2006:- It was held that
merely non-disclosure of the names of witnesses in the daily diary as well as
mortuary register cannot affect the prosecution of case.
Case State of A.P. v/s V.V. Panduranga Rao-2009: It was held that statement
given on telephone is to be treated as FIR because cryptic telephonic message of
cognizable offence received by Police would not constitute FIR. The mere fact
that the telephonic message was first in point of time does not by itself clothe it
with character of FIR.

5. Where FIR is lodged and what Object:- Generally the information about the
offence committed is given to the Police Station of the place concern, but it does
not mean that it cannot be lodged elsewhere. In a case of Punati Raube v/s
State of A.P.-1993: The police constable refused to record the compalaint on the
ground that the said police station had no territorial jurisdiction over the place of
crime. Any lack of territorial jurisdiction could not have prevented the constable
from recording information about the cognizable offence and forwarding the
same to concern police station.

6. The object of FIR: the main object of the FIR is to complain of any of the
offence to a Police officer so that criminal law could be applied. Where the FIR
was found o have been written after the inquest report was prepared the court
held that it has lost its authenticity in the case of Balaka Singh v/s State of
Punjab-1975.

7. IMPORTANCE OF FIR:- On consideration its important from every angle it is

noticed that FIR is a very important from the occurrence of an offence. It should
be given immediately after the offence is committed. The delay in giving
information is viewed with grave suspicion as held in the case of Modivalappa
-1966. There is no need to give the names of witnesses or other minute detail.

8. Duty to register FIR:- In a case of Rajender Singh Katoch v/s Chandigarh

Administration & Others-2008, that although the officer-in-charge of Police
station is legally bound to register a FIR in term of sec.154. It was also held in
Aleque Padamsee and Others v/s Union of India-2007:- that in case of inaction
of police officials in registering FIR person aggrieved can adopt modalities
contained in sec.190 read with 200 Cr.P.C by laying complaint before the
magistrate concern to take cognizance of offence.
9. Delay in filing FIR: – Delay in giving FIR can be condoned if there is
satisfactory explanation as held in Apren jospeh v/s State of Kerla-1973.

Whether the delay is so long as to throw a cloud of suspicion on deeds of the

prosecution case must be depend upon a variety of actors, Case Ram Jog v/s
State of UP-1974.

10. Delay in lodging FIR in rape cases:- In State Of Himachal Pradesh v/s
Shreekant Shekari-2004: That mere delay in lodging FIR does not anyway
render prosecution version brittle.

11. Powers to investigate:-Under section156 the police is 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 for the investigation as in case of Abhyanand Jha v/s Dinesh Chandra-
1968. Sec. 156(2) provides that no proceeding of a Police Officer in any such
case shall at any stage be called in question on the ground that the case was
one which such officer was not empowered under this sec. to investigate, case
Hari Singh v/s State of UP-2006. Sec.156(3) Any magistrate is empowered
under sec.190 may order such an investigation , case Bateshwar Singh v/s State
of Bihar-1992.

6. Brief the Jurisdiction of criminal Courts in inquiries &Trials.

OR “Every offence shall ordinarily be inquired and tried by court
within the local limits of whose jurisdiction It was committed.”
Explain the statement and state its exception.
INTRODUCTION: – A Magistrate within whose local jurisdiction the offence is
committed is competent to take cognizance and to try the case. The jurisdiction
of the Magistrate does not come to an end by transfer of the locality, where the
crime was committed to another district. The court having jurisdiction to try the
offences committed in pursuance of the conspiracy can try the offence of
conspiracy even if it was committed outside its jurisdiction under section 177.
 It makes it clear that an offence shall be inquired and tried by a court
within the local limits of whose jurisdiction the offence was committed. B.Patnaik
v/s Smt.Binand, 1970, it was held that court decided that offences shall be tried
by a court within the local limits of whose jurisdiction the offence was
committed.

1. Place of inquiry or trial in certain matters:- Sec.178, when it is uncertain in

which of several local areas an offences was committed. The offence is
committed partly in one local area and partly in another. Where an offence is
continuing one and continues to be committed in more local areas than one.
Then it may be inquired or tried by a court having jurisdiction over any of such
local areas. State of M.P. v/s K.P.Ghiyara-1957.

2. Offence triable where act is done:- An act is an offence by reason of

anything which has been done and of a consequence which has ensued the
offence may be inquired into or tried by a court within whose local jurisdiction
such thing has been done or such consequence has ensued under sec. 179. Case
Lal chand v/s State -1961is suitable example a gang was created for dacoity in a
district but was committed in another district, it was decided that the case can
be tried by the court of any of the two districts.

3. Place of trial act is offence by reason of relation to other offence:- When an

act is an offence by reason of its to any other act which is also an offence or
which would be an offence if the door were capable of committing an offence the
offence which is done first may be inquired into or tried by a court within whose
local jurisdiction either act was done, under sec.180. Munna Lal v/s State of
Rajasthan-1964: committing theft and receiving stolen property, such matter
can be tried by a court of any of the two places.

4. Place of trial in case of certain offences:-Any offence of being a thug or

murder committed by a thug of dacoity, of dacoity with murder of belonging to a
gang of dacoits or of escaping from custody may be inquired into or tried by a
Court within whose local jurisdiction the offence was committed or the accused
person is found. Under sec.181. Jaswant Singh v/s Emperor, 1918, in a matter
of abduction of married woman for the purpose of unlawful intercourse, it can be
tried that court within whose local jurisdiction the woman was detained.

5. Offences committed by Letters etc:- Any offence which includes cheating

may if the deception is practiced by means of letters o telecommunication
message be inquired into or tried by any court within whose local jurisdiction
such letters or messages were sent or were received and may offence of
cheating and dishonesty including delivery of property may be inquired into or
tried by a court within whose local jurisdiction the property was delivered by the
person deceived or was received by the accused person under sec.182.
Tekumalla Muneiah v/s C.B.Ammanamma, 1991: it was a case of bigamy the
court held the complainant could be entertained by the court having territorial
jurisdiction over that place.

6. Offence committed on journey or voyage:- When an offence is committed

while the person by or against whom or the thing in respect of which the
offence is committed is in the course of performing a journey or voyage the
offence may be inquired into or tried by a court through or into whose local
jurisdiction that person or thing passed in the course of that journey or voyage,
u/sec.183.

7. Place of trial for offences triable together:- Sec.184 says, where the offence
committed by any person are such that he may be charged with and tried at one
trial for each such offence by virtue of the provisions of seec.219 or sec.220 or
sec.221. The offence or offences committed by several persons are such that
they may be charged with and tried together by virtue of the provision of
sec.223.Case: Pursottam Dalmiya v/s State of W.B.-1961.

8. Offences Committed Outside India:- When offences is committed outside

India by a citizen of India, whether on the high seas or elsewhere or by a person
not being such citizen on any ship or aircraft registered in India, he may be dealt
with in respect of such offence as if it had been committed at any place in India
at which he may be found.
7. DISCUSS THE JOINDER OF CHARGES UNDER CODE OF
CRIMINAL PROCEDURE.
INTRODUCTION:- The object of the rule embodied in the sec. 218 of Cr. P. C., is
to ensure a fair trial and to see that the accused is not bewildered or perplex to
confuse by having been asked to defend several unconnected charges or distinct
offences lumped together in one charge or in separate charges. We will read the
rules relating to joinder of charges described in different part of this section.
There is no exception to the rule that there should be separate charge for each
offence. The detail study of this section is as under:-

DEFINITION: – For every distinct offence of which any person is accused there
shall be a separate charge and every charge shall be tried separately. Where
the accused person by an application in writing, so desires and the Magistrate is
of opinion that such person is not likely to be prejudiced thereby, Magistrate
may try together all or any number of the charges famed against such person.

1. Effect of Contravention of Sec.218:- The effect of the contravention of the

provisions of this sec. has been considered by the Supreme Court in following
number of cases:- Sushil Kumar v/s Joy Shankar-1971: It was held that charges
under 408 and 477A of IPC could be tried together. In this case several persons
accused on several items of embezzlement were tried jointly. There was no
failure of justice in consequence of the joinder of charges had occurred. In V.N.
KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that the provisions of
sec. 218 to 224 would indicate that separate charge and separate trial for such
distinct offence is the normal rule and joint trial is an exception when the
accused have committed separate offence.”

2. Failure to Explain injuries on the accused:- When the prosecution fails to

explain satisfactorily the injuries sustained by the accused there are number of
judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-1975:
It was held that the accused had inflicted the injuries on the members of the
prosecution party in exercise of the right of self-defence.
3. Three offences of the same kind within year may be charged together:-
under section 219 of Cr. P. C. when a person is accused of more offences than
one of the same kind committed within the space of twelve months from the
first to the last of such offences, he may be charged with and tried at one trial
for any number of them not exceeding three. Provisions of section are only
enabling provisions, it applies where offences are of the same kind but it does
not apply where offences are not of the same kind such as criminal breach of
trust and falsification of accounts. Rahmat v/s State of U. P.-1980.

4. Trial for than one offence:- If in one series of Acts so connected together as
to form the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one trial for every such
offence as provided under section,220 of the Cr. P.C. Case Krishna Murthy v/s
Abdu Subhan- 1965. Case of Kanshiram v/s Jhunjhunwala-1935, with the same
it was necessary to ascertain whether they are so connected together as to
constitute a whole which can properly be described as a transaction.

5. Where it is doubtful what offence has been committed: – Sec.221 provides

for the cases where it is doubtful what offence has been committed. It applies to
the cases in which the facts are not doubtful but the application of law to the
facts is doubtful as held in a case of Abdul Hamid -1935. This sec. applies where
the doubt is about the nature of the offence and not about the facts as held in
case Jatinder Kumar v/s State of Delhi-1992.

6. When the offence proved included in offence charged: – Sec.222 considered

the conviction of minor offence included in the offence charged in either of two
cases, where the offence charged consists of several particulars and combination
is proved but the remaining particulars are not proved as held in Maung Ba v/s
the King-1938. And where the facts are proved which reduce the offence
charged to a minor offence as held in case of, Emperor v/sAbdul Wahab-1945.

7. What persons may be charged jointly:- Under sec.223 joint trail of several
persons is permissible and applies only to trials and not to inquires. A joint trial
of several persons under this section is not vitiated merely by the facts that at
the end of the trial the facts found happen to be different from those on the
basis of which the charges were originally framed as held in case of Trilokchand
v/s Rex-1949. It was also held in case of A.R.Autulay v/s R.S.Nayak-1988.

8. Withdrawal of remaining charges on conviction on one of several charges: –

When a charge containing more heads than one is framed against the same
person and when a conviction has been had on one or more of them, the
complainant or the Officer conducting the prosecution may with the consent of
the Court withdraw the remaining charge or charges. The court of its own accord
may stay the inquiry into or trial of such charges. Court may proceed with the
inquiry into or trial of the charge or charges so withdrawn.

8. Discuss the provisions of trail before a Court of Session.

INTRODUCTION: – The procedure of trial of offences before court has been

described in section 225 to sec. 237 of the Criminal Procedure Code-1973. Here
it is important that any matter does not come directly for trial before the Court
of Sessions. Such matter is committed for trial to Court of Session. Any matter
is committed to Court of Session when it has the exclusive jurisdiction to try
such offence.

1. CONDUCTION OF TRIAL:- In every trial before a Court of Session,

the prosecution shall be conducted by a Public Prosecutor as laid down in
sec.225 of the code.

2. OPENING THE CASE FOR PROSECUTION:- When the accused

appears or brought by before the Court in pursuance of a commitment of the
case under section 209 the prosecutor shall open his case by describing the
charge brought against the accused and stating by what evidence he purposes
to prove the guilt of the accused under sec. 226 of Cr. P. C. case of Hukam Singh
v/s State of Rajasthan-2001.

3. DISCHARGE: – If upon the consideration of the record of the case

and the documents submitted therewith and after hearing the submission of the
accused and the prosecution in this behalf, the Judge considers that there is not
sufficient ground for proceeding against the accused he shall discharge the
accused and record his reasons for doing so. As held in case of T.V.Sharma v/s
R.Meeriah-1980. It is called charge arguments; court has to consider the
complete case carefully before giving order to discharge State of J&K v/s
Romeshchandra-1997. These are the provisions of sec.227.

4. Framing of charge: – While framing charges court shall only see that
there is a prima facie case against accused or not. At this juncture there is no
need for praising witnesses as held in case of State of M.P. v/s S.B. Johri-2000.
Where the judge frames any charge, the charge shall be read and explained to
the accused and accused shall be asked whether he pleads guilty of the offence
charged or claims to be tried as provided in section 228 of Cr. P.C.

5. Conviction on Plea of Guilty: – If the accused pleads guilty the judge

shall record the plea and may in his discretion convict him thereon. The plea of
guilty only amounts to an admission that the accused committed the acts
alleged against him. It was held in case of Tyron Nazarath v/s State of
Maharashtra-1989. This is more so in case persons tried jointly when some
plead guilty and the others claim to be tried, case of Bantra Kunjana-1960.
These are provisions available in sec. 229 of Cr.P.C.

6. Date for Prosecution Evidence:- If the accused refuses to plead or

does not plead or claims to be tried or is not convicted under sec.229, the Judge
shall fix a date for the examination of witnesses and may on the application of
the prosecution issue any process for compelling the attendance of any witness
or the production of any document or other thing. Case Mukipad Mandal v/s
Abdul Jabbar-1973, it is the duty of court to take all necessary steps to compel
the attendance of witnesses. The accused cannot be acquitted on the ground of
failure of the witnesses to appear before the court, under sec. 230.

7. Evidence for Prosecution:- On the date fixed, the judge shall proceed
to take all such evidence as may be produced in support of the prosecution
sec.231. when any witness appears before the court there shall be no delay as
possible in his examination but if any delay happens in the examination of any
witness the merely on this ground the prosecution matter cannot be suspended
case of Bunty urf Guddu v/s State of M.P-2004.

8. Acquittal: – If after taking the evidence for the prosecution

examining the accused and hearing the prosecution and he defence on the point
the Judge considers that there is no evidence that the accused committed the
offence the judge shall record an order of acquittal under sec. 232. The accused
can either be convicted or acquittal but not discharged.

9. Entering Upon Defence :- Where th accused is not acquitted under

sec.232 he shall be called upon to enter on his defence and adduce any evidence
he may have in support thereof. It the accused puts in any written statement
the judge shall file it with the record. If the accuse applies for the issue of any
process for compelling the attendance of any witness or production of any
document or thing the judge shall issue such person unless he considers such
application for the purpose of vexation or delay or for defeating the ends of
justice. Case State of MP v/s Badri Yadav-2006. These are the provisions in
sec.233.

10. Arguments:- When the examination of witnesses for the defence is

complete the prosecutor shall sum up his case and accused shall be entitled to
reply. During his process where any point of law is raised by the accused the
prosecutions mazy with the permission of judge make his submissions with
regard to such point of law under sec. 234. It is called arguments.

11. Judgment:-After hearing both the parties the judge shall give a
judgment in the case under sec.235.Case:Alluddin Mian Sharif Mian v/s State of
Bihar-1989.

12. Previous Conviction: – If the accused is charge of previous conviction

and the accused does not admit that then judge may take evidence in respect of
the alleged previous conviction and record a finding thereon under sec. 236.

13. Procedure in cases instituted under Sec. 199:-Sec.237 of the code

provides the procedure for trial of such matters which have been instituted
under sec.199 (2). Sec.199 (2) provides for prosecution of defamation matters.
If any matters of defamation is alleged to have been committed against the
President of India, Vice-President, Governor of State, Administrator of UT,
Minister of Union or State or Any other Public servant. If during trial court finds
scope of acquittal he may pass such orders.

9. For every distinct offence of which any person is accused

there shall be a separate charge and every such charge shall
be tried separately. Explain are there any exceptions to this
rule, if so what?
INTRODUCTION:- Provisions relating to charge are aimed at giving complete
information to the accused about the offence of which he is being charged. It
gives the accurate precise information about the accusations made against him.
Every charge shall state the offence with which the accused is charged. The
charge shall be written in the language of the Court. The language of the charge
should be specific and clear.

WHAT IS CHARGE: – Sec.2 (b) of Cr.P.C.-1973 provides the definition of charge

but it is neither definition as per dictionary meaning nor it is directing any
meaning. It only says that, “Charge induces any head of charge when the
charge contains more heads than one.” Charge is such a written statement of
the information of offence against the accused person which contains the
grounds of charge along-with time, place, person and things in relation to which
offence is committed. The charge is a precise formulation of the specific
accusation of an offence against the accused person. Accused prepares his
defences on the basis of it.

Components of Charge:- Sec.211 says that:-

1. Every charge shall state the offence with which the accused is charged.

2. If the law which creates the offence gives it any specific name, the same
may be described by that name, like theft, robbery, dacoity or murder etc.

3. If law does not give any specific name so much of the definition of the
offence must be stated for giving the notice to accused.

4. The Law and section of the law against which the offence is committed shall
be mentioned in the charge.

5. The fact that the charge is made is equivalent to a statement that every
legal condition required by law to constitute the offence is fulfilled.

6. The charge shall be written in the language of the court. Case of Krishan
v/s State of Kerla-1958.The court said that charge should be in Court’s
language.

7. The previous conviction if any of the accused must be stated in the charge
i.e. place, date and the fact of the offence.

According to Sec. 212:- Particulars as to time place and person:-

1. The time of commission of the offence be given in the charge.

2. The place of commission of the offence may also be recorded in charge.

3. The person against whom or thing in respect of which it was committed.

4. The manner of committing offence must be stated in the charge u/s

213.

5. The words must be of sense of law under which offence is punishable

u/s214.

Effect of Errors: – Section 215 of the code says that there should be no error in
stating either the offence or the particulars required to be stated in the charge,
there should also be no omission to state the offence or those particulars which
at any stage of the case as material unless the accused was in fact misled by
such error or omission which may results the failure of justice. Then such charge
shall be considered faulty and the trial on the basis of such charge shall also be
faulty.

Court May alter the charge: Under sec.216, any court may alter or add to any
charge at any time before the judgment is pronounced.

Recall of Witnesses when charge altered:- under section 217, whenever the
charge is altered or added to by the Court after the commencement of the trial
the prosecutor and the accused shall be allowed to recall or re-summoned and
examine the alteration and addition any witness who may have been examined.

Separate charges for distinct offence: – The object of sec.218 is to ensure a fair
trial and to see that the accused is not bewildered by having been asked to
defend several unconnected charges or distinct offences lumped together in one
charge, case of Aftab Ahmad Khan v/s State of Hydrabad-1954.

Same offences of same kind within one year may be charged together: – sec.
219 provides that offences punishable under sec.379 and 380 IPC shall be
deemed to be offences of the same kind. Criminal breach of trust and
falsification of accounts, when the offence is committed by a single accused and
is not applicable where several persons are tried jointly.

Trial for than one offence:- Sec.220 provides If in one series of acts so
connected together as to form the same transaction, more offences than one are
committed by the same person, he may be charged with, and tried at one trial
for every such offence. Case State of Biahar v/s Simranjit Singh-1987.

Framing of charge where it is doubtful what offence has been committed:-

sec.221 of the code provides for the framing of charge in those matters where
there is doubt of what offence has been committed. In such matters, charge
shall be framed as follows:-
All offences committed as a result of the nature of Act.

All or any of such offences charged in the alternative with having committed
some one of the said offences. Goverdhan v/s Kanilal-1953.

When offence proved included in offences charged:- When a person is charged

with an offence consisting of several particulars or an offence and facts are
proved which reduce it to a minor will be convicted of the minor, case of State of
Maharashtra v/s Rajendra Jawanmal Gandhi-1997, Sangarobina Sreenu v/s
State of A.P.-1997. These are the provisions of Sec.222 of the code.

Withdrawal of remaining charges on conviction on one of several charges:-

Sec.224 of the code says that when a charge containing more heads than one is
framed against he same person and when a conviction has been had one or
more of them the applicant or prosecution with the consent of court withdraw
the remaining charges or court of its own accord may stay the inquiry or trial.

10. What do you mean by Judgment? What are the contents of

judgment? Discuss the powers of High court to conQrm death
sentence?

INTROUDCTION: – After hearing both the parties the Judge give a judgment in
the case. The judgement in every trial in any criminal court of its own
jurisdiction shall be pronounced in the open court by the presiding officer
immediately after the termination of the trial or at some subsequent time of
which notice shall be given to the parties or their pleaders.

1. Section 353 of the cr. procedure code-1973 provides:-The judgment in every

trial in any criminal court in its own jurisdiction shall be pronounced in open
court by the presiding officer immediately after the termination of the trial or at
some subsequent time of which notice shall be given to the parties or their
pleaders. Case Anthony v/s State-1993. It was also held in a case of Yelchuri
Manohar v/s State of A.P-2005, that electronic media cannot provide any
guiding factors.
2. Language and contents of Judgment: – That every judgment shall be written
in the language of the Court. It may also contain the point or points for
determination, the decision thereon and the reasons for the decision, as
provided in sec. 354 of the code. Case of Ram Bali v/s State of U.P. -2004. The
language and the contents of the judgment must b self-contained and must also
show that the court has applied its mind to the facts and the evidence, as held in
case of Niranjan V/s State -1978. Failure to signing of judgment at the time of
pronouncing it is only a procedural irregularity curable as per instructions
provided in the code.

3. Judgment of Metropolitan Magistrate: – That instead of recording a judgment

in the manner provided a metropolitan magistrate shall record the serial number
of the case, the date of commission of the offence along-with the name of the
complainant. The name of the accused person his parentage and residence
mentioning the plea and examination of accused. The date of final order may
also be recorded as provisions laid down in sec.355.

4. Order for notifying address of previously convicted offender: – Sec. 356 of the
code provides that, when any having been convicted by a court in India of an
offence punishable. If such conviction is set aside on appeal or otherwise such
order shall become void. State Govt., can make rules to carry out the provisions
relating to the notification of residence.

5. Order to pay compensation:-The quantum of compensation is to be

determined by taking into consideration the nature of the crime, injury suffered
and the capacity of the convict to pay in case of Manish Jalan v/s State of
Karnatka-2007. These are the provisions of the section 357.

6. Scheme for compensation to victim:-In every state with the coordination with
the central Govt., shall prepare a scheme for providing funds for the purpose of
compensation to the victim or his dependents who have suffered loss or injury
as a result of the crime and who require rehabilitation under sec.357A.

7. Compensation to persons groundlessly arrested: – Sec. 358 provides that

whenever any person causes a police officer to arrest another person if it
appears to the Magistrate by whom the case is heard that there was no
sufficient ground of causing such arrest. The Magistrate may award such
compensation not exceeding 1000/- rupees as held in case of Parmod Kumar v/s
Golekha1986.

8. Order to pay costs in non-cognizable cases: – Sec.359 says that whenever

any complaint of a non-cognizable offence is made to a court, the court if it
convicts the accused can order to pay the penalty along-with cost incurred by
the complainant and in case of default of payment the accused can sentence
simple imprisonment for a period not exceeding 30 days.

9. Order to release on probation of good conduct after admonition:-Sec.360 says

that this section is a piece of beneficent legislation. It applies only to first
offenders. It enables the court under certain circumstances to release the
accused who has been convicted on probation of good conduct as in a case of
Ved Parkash v/s State of Haryana-1981.

10. Special reasons to be recorded in certain cases: – Where in any case the
court could have dealt with an accused person under the provisions of offenders
Act a youthful offender may tried by any other law for the time being in force for
the treatment training or rehabilitation of youthful offenders as held in case of
Nanna v/s State of Rajasthan-1989, under sec. 361.

11. Court not to alter Judgment:- According to section 362 of the code that any
other law for the time being in force no court when it has signed its judgment or
final order disposing of a case shall alter or review the same except to correct a
clerical or arithmetical error, case of Naresh & others v/s State of U.P.-1981.

12. Copy of the judgment to be given to the accused and other persons: –
Section 363 says that a copy of the judgment shall immediately after the
pronouncement of the judgment be given to him free of cost, as held in case of
Ladli Parsad Zutsi-1932.
13. Judgment when to be translated: – Sec.364 provides that the original
judgment shall be filed with the record of proceedings and where the original is
recorded in different language from that of court and so requires it may be
translated in to the language of the Court.

14. Court of Session to send copy of finding and sentence to District Magistrate:
– In the case tried by the court of session or a CJM the court or such magistrate
as the case may be shall forward a copy of its or his finding and sentence if any
to the District Magistrate as said in sec. 365 of the code.

14 Submission of death sentences for confirmation:-Sec.366When a Court of

Session passes a sentence of death the proceedings shall be submitted to H/C, it
cannot be executed unless it is confirmed by H/C. Sec.371 procedure laid down
that the Proper officer without delay after the order of confirmation or other
order has been made by H/C send a copy of the order under seal of H/C duly
attested to S.Court

11. Examine the law relating to appeal in criminal case. Make a

difference between Appeal & Revision in criminal cases.
INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied from
judgment finding and orders of the trial court. Under section 372 of the Cr.P.C.,
it is provided that relation to appeal it is necessary to know that no appeal shall
lie from any judgment or order of a criminal court except as provided by this
code or any other law for time being in force, case Garikapati v/s Subhash
coudhari-1957. However the provisions regarding making an appeal are the
following:-

1. Appeal from orders requiring security or refusal to accept or rejecting surety

for keeping peace or good behavior: – Any person who has been ordered to give
security for keeping the peace or for good behavior or who is aggrieved by any
order refusing to accept or rejecting a surety on the basis of sec.373.

2. Appeals from Convictions: – According to section 374 of code that any person
convicted on a trial by a H/C in its extraordinary original criminal jurisdiction
may appeal to Supreme Court similar any person convicted by session judge or
on a trial held by any other court which sentence or imprisonment is more than
7 years may appeal to High court. Case Panchi v/s State of U.P.-1998, In
C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: – Under sec.377, the state Government

may in any case of conviction on a trial held by any court other than a H/C direct
the Public Prosecutor to present an appeal against the sentence on the ground of
its inadequacy to Court of Session if the sentence is passed by the Magistrate or
to the H/C if the sentence is passed by any other Court. When an appeal is filed
against the sentence on the ground of its inadequacy court shall not enhance the
sentence except after giving to the accused a reasonable opportunity of sowing
cause against such enhancement. Case of Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378 the

H/C has full power to review at large the evidence on which the acquittal is
based and to reach the conclusion that the order of acquittal should be reversed
as held in case of Mohandas v/s State of MP-1973, but exercising his power the
H/C should give proper weight and consideration to the view of the trial judge as
to the credibility of witnesses, presumption of innocence in favour of the
accused. And a right of the accused to the benefit of any doubt. It was also held
in State of U.P. v/s Gambir Singh-2005 case of appeal against acquittal if on
same evidence two views are possible, the one in favour of accused must be
preferred.

During the hearing of appeal from the order of acquittal it should be taken into
consideration that there is no miscarriage of justice, case Allahrakha K. Mansuri
v/s State of Gujrat-2002. The order of acquittal cannot be dismissed merely on
the ground that a second approach could have been applied in the case and it
means that the accused could have been convicted on considering another view
a case of Chandra Singh v/s State of Gujrat-2002.

5. Appeal against conviction by H/C in certain cases :-Where an H/C has on

appeal reversed an order of manifest on record of acquittal of an accused person
and convicted him and sentenced him to death or to imprisonment for life or to
imprisonment for a term of ten years or more, he may appeal to the Supreme
Court under sec. 379.

6. Special right of appeal in certain cases:- In Shingara Singh v/s State of

Haryana-2004, when more persons than one are convicted in one trial and an
appealable judgment or order has been passed in respect of any of such
persons, under section 380.

7. Appeal to court of session how heard:- Appeal to the court of session shall
be heard by the sessions judges or by ASJ u/s 381.

8. Petition of appeal:-Every appeal shall be made in the form of a petition in

writing presented by the appellant or his pleader u/s 382.

12. DIFFERENCE BETWEEN APPEAL & REVISION

APPEAL

1. Any person convicted on a trail held by H/C may appeal to S/C.

2. Any person convicted on a trial by a Session judge or on a trial held by any

other court for more than 7 years may appeal to the High Court

3. Any person convicted on a trial held by metropolitan Magistrate or Magistrate

Ist. Class may appeal to Session Judge.

4. If the appellant is in jail he present his petition of appeal through Officer I/c
jail.
5. Pending an appeal by accused person the appellate court shall suspend the
execution of order of sentence & if he is in confinement he be released on bail.

REVISION

1. The correctness, legality or proprietary of any finding sentence or order of

any lower court.

2. The regularity of any proceedings of such court.

3. The powers of revision cannot be used through interlocutory orders.

4. During the hearing of Revision argue of the person applying for revision
should be considered seriously even though it they are too brief. Case Pal
George v/s state-02.

13. What is bail? State the provisions of Bail under Cr.P.C. Can
a person get order to be released on Bail without judicial or
Police custody? Refer case law.

INTRODUCTION:-It is travesty of justice that many poor accused i.e. ‘little

Indians’ are forced into long cellular servitude for little offences because the bail
procedure is beyond their meagre means and trails don’t commence and even if
they do, they never conclude. Our bail system suffers from a property oriented
approach which means to proceed on the erroneous assumption that risk of
monetary loss is the only deterrent against fleeing from justice.

What is bail?-When any person who is accused of any offence other than non-
bailable offence, he shall be released on bail under sec.436 of the code provided
he has been arrested or detained without warrant by an Officer I/C of Police
station or he appears or is brought before a court and he must be prepared any
time whine in the custody or at any stage of the proceeding before a court.

However the following are the provisions of getting Bail under Cr.P.C. Offences
can be classified into two classes on the basis of bail:-

i) Bailable offences: – Bailable offences are of general nature and in

these offences it is right of accused to be released on bail. Sec.436 of Cr.P.C.
pertains to Bailable offences.

ii) ii) Non-Bailable offences: – These offences are of severe nature and
bail cannot be claimed as right in them. In such cases bail depends upon the
discretion of the court. Sec. 437 relates to Non-bailable offences.

1. Grant of Bail in Non-bailable offences: – Sec. 437 provides that when any
person accused of or suspected of commission of any non bailable offence is
arrested or detained without warrant by an Officer I/C of a Police station or
appears or is brought before a court other than the High Court or court of
Session he may be released on bail. Thus section 437 empowered a Magistrate
to take bail in non bailable offences. The provision of this makes it clear that bail
in non bailable offences depends upon the discretion of the court.

i) When bail shall be granted: – sec.437 (1) lays down two situation in
which bail shall not be granted by magistrate:1) reasonable grounds for
believing that he has been guilty of offence punishable with death or
imprisonment for life. 2. When offence is cognizable and he had been convicted
with death, imprisonment for life or imprisonment for 7 years or more or he has
been convicted on two or more occasion.

ii) There are exceptions to receive bail:- this section also provided with
few exceptions where magistrate can receive bail in following cases:-

a) Where the accused is under the age of 16 years.

b) If she is a woman.

c) Sick or infirm
Thus in the above cases the bail application can be accepted even though the
accused in guilty of offence punishable with death or imprisonment for life or has
been convicted earlier. Case Venkataramanappa v/s State of Karnatka-1992.

Conditions for Bail:- Under sec. 437(3) that where a person accused or
suspected of the commission of an offence punishable with imprisonment which
may extend to 7 years or more or for an offence, abetment of or conspiracy or
attempt to commit any such offence is released on bail, the court may impose
any condition which the court considers necessary, as in the case of Gurbaksh
Singh v/s State of Punjab-1980:-

· In order to ensure that such person shall attend in accordance with

the conditions of the bond executed under this chapter.

· That such person shall not commit an offence similar to an offence

of which he is accused or suspected.

· That otherwise in the interest of Justice.

Can a person get order to be released on Bail without judicial or Police custody:-

Where any person has reason to believe that he may be arrested on accusation
of having committed a non-bailable offence he may apply to the High Court or
the Court of Session for a direction under sec. 438 that in the event of such
arrest he shall be released on bail.

*It was held in Adri Dharam dass v/s State of W.B-2005; it was held that it is
exercised in case of an anticipated accusation of non-bailable offence. The object
of this section is that the moment a person is arrested if he has already obtained
an order from High court of Court of Session he shall be released immediately
on bail without being sent to jail.

*It was also held in Vaman Narain Ghiya v/s State of Rajasthan-2009, direction
u/s 438 that the applicant shall be released on bail whenever arrested for
whichever offence whatsoever such a blanket order should not be passed.

It was further observed that direction under sec.438 is to be issued at pre-arrest

stage, with some conditions:-

i) That the person shall make himself available for interrogation by a Police
officer as and when required. ii) The person shall not directly or indirectly make
any inducement, threat or promise to any person acquainted with the facts of
the case. iii) That the person shall not leave India without the previous
permission of the court. iv) If such person is thereafter arrested without warrant
by Police on such accusation and is prepared either at the time of arrest or at
any time while in the custody of police station to give bail, he shall be released
on bail.

14:-Discuss the provisions relating to revision to criminal

cases. Can High Court exercising revision powers?
INTRODUCTION: – Revision is also a judicial remedy which has been mentioned
in sec.397 of the code. The main object of revision is to examine the purity,
validity, relevancy or regulation or any order, finding or sentence. This section
gives powers to High Court and the Session Judge to call for and examine the
record of any proceeding before any inferior Criminal Court within its or his local
jurisdiction. The followings are the provisions regarding when the revision shall
be done:-

1. Calling for records to exercise powers of revision: – The High court or the
Session Judge may call for and examine the record of any proceeding before any
inferior criminal court of his jurisdiction for the purpose of satisfying as to the
correctness, legality or propriety of any finding, sentence or order recorded or
passed, u/s 397 of the code. Case Johar & Others v/s Mangal Prasad and
another-2008, it was held that trial court is not found to be passed without
considering relevant evidence or by considering irrelevant evidence.

In a case of Badri Lal v/s State of M.P.-1989: The powers under this section are
undoubtedly wide and the Session Judge can take up the matter suo motu, it
must be seen that the criminal law is not used as an instrument of private
vengeance.

Kuldeep Singh v/s State of M.P.-1989: It was held that the order framing charge
could not be lightly interfered with in revision.

In vinod kumar v/s Mohawati-1990: That the court of Session has similar powers
as of High Court in revision and as the High Court is authorized to take
additional evidence in revision.

In Gram Sabha Lakhanpur v/s Ram Dev-1993:- It was held that the complainant
may or may not have a legal right of being heard but the rule of prudence and
natural justice requires that the aggrieved party must be afforded an
opportunity of hearing.

In a case of Mahavir singh v/s Emperor-1944: The regularity of any proceedings

of such inferior court where the finding sentence or order is illegal or improper
and where the proceedings are irregular.

Case of T.B.Hariparsad v/s State-1977, it was held that the powers of revision
cannot be used through interlocutory orders passed in any appeal inquiry, trial
or other proceedings under sec. 397(2).

In a case of Paul George v/s State-2002, it was held that during the hearing of
Revision argue the person applying for revision should be considered seriously
even though if they are too brief.

2. Order of Inquiry:- Sec. 398 of the code provides powers of issuing order of
inquiry to High Court or court of Session. Accordingly on examining any record
under sec.397 or otherwise the High Court or Session Judge may direct CJM by
himself or by any of Magistrate subordinate to him to make inquiry of any
complaint which has been dismissed under sec.203 or the case of any person
accused of an offence who has been discharged.
3. Powers of Revision of Court of Session: – Sec.399 provides powers of revision
to court of session in the case of any proceeding the record of which has been
called for by himself. The session judge may exercise all or any of the powers
which may he exercised by the High Court.

Where an application for revision is made by or on behalf of any person before

the session judge the decision of the session judge shall be final and no further
proceedings by way of revision a the instance of such person shall be
entertained by the High Court or any other court. These powers of revision have
been provided to the Addl. Session Judge under sec.400.

4. Powers of Revision of High Court: – Sec.401 of the code provides powers of

revision to High Court that in case of any proceeding the record of which has
been called by itself or which otherwise comes to its knowledge, the High Court
may exercise any of the powers conferred on a court of appeal by sec. 386, 389,
390 and 391 or on court of session by sec. 307. Thus during revision High Court
shall be able to exercise all powers which an appellate court can do. In case of
Vimal Singh v/s Khuman Singh-1998: Supreme Court restricted the area of
revision generally the order of acquittal is not interfered. Powers of revision can
be exercised in following situations:-i)Where severe illegality has occurred by
trial court.

ii) Where the order of trial court has failed to provide justice.

iii) Where the trial court has tried a case which fall beyond its jurisdiction.

iv) Where the trial court has stopped taking evidence unlawfully.

Here it is pertinent to mention that any party has applied for revision believing
that no appeal lies there but an appeal lies there then the court shall consider
such application for appeal in the interest of justice u/s 401(2). The order of
acquittal cannot be reversed into an order of conviction in revision as held in
case of Singher Singh v/s State of Haryana-2004, u/s 401(3).
5. Power of High Court to withdraw or transfer revision cases:-whenever one or
more persons convicted at the same trial makes an application to High Court for
revision. The High Court shall direct that the applications for revision made to it
be transferred to the Session Judge who will deal with the same as if it were an
application made before him, under sec. 402 of this code.

6.Copy of the order to be send to lower court:- Sec. 405 of the code provides
that where any case is revised by High Court or court of session, it or he shall in
the manner provided by sec.388, certify its decision or order to the court of by
which the finding, sentence or order revised was recorded or passed and the
court to which decision or order is so certified shall thereupon make such orders
as are confirmable to the decision so certified and if necessary record shall be
amended in accordance there with.

15.Discuss the provisions of Judgment. Can court alter its own

Judgment?

INTRODUCTION: – It must contain the judgment comes out from every trial in
any criminal court of its original jurisdiction which is to be pronounced in open
court by the presiding officer immediately after the termination of the trial.
Judgment can be delivered in whole or the operative part of the judgment and
explaining the substance of the judgment in a language which is understood by
the accused. The provisions however are as under:-

1. Contents of Judgement:- Section 353 of cr.P.C-1973 provides that the

judgement in every trial in any criminal shall be pronounced in the open court by
the presiding officer just after the completion of the trail or at some subsequent
time which notice shall be given to the parties or their advocates. It can be
delivered as a whole of the judgement or can by reading out the of judgement.
If may also be byreading the operative part of the judgement in such language
which easily be understood by the accused or his advocate.

a)Each and every page of judgment when it is made should be singed,

mentioning the date of delivery of the judgment in open court.
b) No judgment which is delivered by any criminal court shall be deemed to be
invalid by reason only of the absence of any party or his advocate on the day or
place notified for the delivery of the judgment.

c) As soon as the judgment is pronounced a copy of the same immediately be

made available for the perusal of the parties free of cost.

d)If the accused is in the custody he shall be brought up to hear the judgment
pronounced. And if the accused is not in custody he shall be required by the
court to attend to hear the judgement pronounced.

e) Where there are more accused than one and one or more of them do not
attend the court on date on which the judgement is pronounced. Presiding
officer to avoid delay in the disposal of the case pronounce the judgement even
their absence.

2.Language & contents of Judgement: – According to sec.354 the judgement

should be written in language of court which contains points for determination,
the decision thereon and the reasons for the decision. If it be a judgement of
acquittal, shall state the offence of which accused is acquittal and direct that he
be set at liberty. Sec.354(3) when all the murderers are to be sentenced with
death sentence will become a dead law as held in a case of Muniappan v/s State
of Tami Nadu-1981.

3 Order for notifying address of previously convicted offender: – When any

person having been convicted by a court in India of an offence punishable which
relates to criminal intimidation with imprisonment for a term of three years or
upwards is again convicted of any offence punishable Court may order that his
residence and any change of such residence after release be notified. Such rules
may provide for punishment for the breach thereof, under sec.356.

4.Order to pay compensation: – When a court imposes a sentence of fine or a

sentence including sentence of death of which fine forms a part the court may at
the time of passing judgement the whole or any part of fine recovered to be
applied. In the payment to any person of compensation for any loss or injury
caused by the offence when compensation is in the opinion of the court
recoverable by such person in a civil court. At the time of awarding
compensation in any civil suit relating to the same matter the court shall take
into account any sum paid or recovered ass compensation on the provisions laid
down in this sec.357, in case of Mangilal v/s State of MP-2004. In Sube singh
v/s State of Haryana-2006, is a fit case to award compensation.

5. Special Reasons to be recorded in certain cases:- As per provisions laid down

in sec.361 of cr.P.C.,where in any case the court could have deal with an accused
person under sec.360 under the provisions of probation of offenders Act or a
young offender under children act or any other law for the time being in force for
the treatment, training or rehabilitation of young offenders has not done so. It
must be recorded in judgement giving special reasons for having not done so, as
held in a case of State of Himachal Predesh v/s Lat Singh-1990.

6. Court not to alter judgement:- Provisions lays in the sec. 362 or by any other
law for the time being in force, no court when it has signed the judgement or
final order disposing of a case shall alter or review the same except to correct
clerical or arithmetical error. In case of Naresh & others v/s State of U.P.-1981.

7. Copy of the Judgement to be given to the accused & other persons:-When the
accused is sentenced to imprisonment a copy of the judgement shall
immediately after the pronouncement of the judgement be given to him free of
cost. In case of Ladli Prasad Zutshi v/s State of Allahbad-1931, it was held that
even public has a right to obtain a copy of the judgement of any criminal court.
This has been provided in sec. 363 of Cr.P.C.-1973.

8. Judgement when to be translated: – As per instructions u/s 364 it is said that

the original judgement shall be filed with the record of the proceedings and
where the original is recorded in a language different from that of the court and
the accused so requires a translation thereof into the language of the court shall
be added to such record.
9. Court of Session to send copy of finding and sentence to District Magistrate:-
The cases tried by the court of Session or a CJM the court or such Magistrate
shall forward a copy of its or his finding and sentence if any to the District
Magistrate within whose local jurisdiction the trial was held as provided in sec.
365 of Cr.P.C.-1973.

16: Analyse the provisions of grant of Anticipatory bail. Can

anticipatory bail be allowed in Murder case? If so when?
INTRODUCTION: – Anticipatory bail has an important place in the series of Bail.
Its main object is to protect the innocent persons from arrest under sec. 438 of
the criminal procedure code-1973 lays down the provisions regarding grant of
anticipatory bail.

· What is Anticipatory Bail: – In-spite of the fact that the Cr.P.C., has not
defined Anticipatory Bail but it means that when a person has a reason to
believe that he may be arrested on accusation of having committed a non-
bailable offence, he may apply to High Court or to the court of Session that in
the event of such arrest he shall be released on bail at that time it is anticipatory
bail. It is also called Apprehension Bail on the basis of provisions laid down in
sec. 438 of cr.P.C.

· Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect

a person from arrest. A person against whom a warrant of arrest has been
issued shall first be arrested kept in custody for few days and then released on
bail, it means where there is no purpose for the arrest he shall not be arrested.

· When anticipatory Bail would be Accepted:- Section 438(1) says that, “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 High Court or
court of Session for a direction under this sec.438(1) and court if thinks it fit,
can direct that in event of such arrest he shall be released on bail.” Case of
Gurbaksh Singh v/s State of Punjab-1980, he was not granted anticipatory bail
merely on fear of arrest. In a similar case of Ashok kumar v/s State of
Rajasthan-1980, that anticipatory bail should not accepted until there is a
definite fear of arrest and such fact has come before the court.

It is pertinent to mention here that reason to believe does not mean mere fear,
i.e. mere ‘fear’ is not sufficient cause. Grounds on which belief is based must be
capable of being examined.

· Who shall accept the Anticipatory Bail:- Sec. 438 (1) that the following
authorities may accept the anticipator bail application:

i. High Court ii. Court of Session

That any accused of an offence and in custody be released on bail on acceptance

of bail application in the above said courts u/s 439 of Cr.P.C.

· Conditions of Grant Anticipatory Bail:-Court can impose reasonable

conditions for grant of anticipatory bail. Those conditions have been mentioned
in section 438(2). When the High Court or Court of Session make a direction
with some conditions in the light of the facts of the particular case as it may
think fit for bail:-

a. That the person shall not leave India without previous permission of the
court.

b. That person directly or indirectly make an inducement threat or promise to

any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police Officer.

c. That the person shall make himself available for interrogation by a police
officer as and when required.

d. That any such other condition as may be imposed under sec.437 if the bail is
granted under this section.
ANTICIPATORY BAIL IN MURDER CASE: – There is no set principle fixed for grant
of anticipatory bail. It is basically depends upon the facts and circumstances of
every case and the nature of the case. Generally the anticipatory bail is not to
be granted in the matters like murder, unnatural death, dourly death.

A case if SamunderSingh v/s State of Rajasthan -1987, the court held that the
anticipatory bail cannot be accepted in dowry death cases especially where
father-in-law and mother-in-law caused unnatural death of the daughter-in-law.

Similarly refusing to grant of anticipatory bail in the matters of atrocities to

schedule tribe and schedule caste was held to be constitutional in a case of State
v/s Ram kishore Batolia-1995.

Anticipatory bail has also been refused in the matters of FERA, a case of
Dukhishyam Venupanni v/s Arun Kumar Bajoria-1998.

Even the facts mentioned above the anticipatory bail can be granted in Murder
cases on the basis of following circumstances:-

i)When there is no apprehension about the absconding of the accused.

ii) When there is no apprehension of inducing or enticing witnesses by the

accused.

iii) When there is no apprehension of the accused for moving abroad.

iv)Where the offence is not the severe or deadly nature.

HEARING OF PROSECUTION

The prosecution must be provided an opportunity of hearing while considering

the anticipatory bail as held in the case of State of Assam v/s
R.K.Krishankumar-1998.
 UNIT-V

INTRODUCTION:-Offences can be classiQed into two classes on the

basis of bail:

Bailable offences: – Bailable offences are of general nature and in these offences
it is right of accused to be released on bail. Sec.436 of Cr.P.C. pertains to
Bailable offences.

Non-Bailable offences: – These offences are of severe nature and bail cannot be
claimed as right in them. In such cases bail depends upon the discretion of the
court. Sec. 437 relates to Non-bailable offences, under section 437 and 439
relates to non-bailment offence.

Grant of Bail in Non-bailable offences: – Sec. 437 provides that when any person
accused of or suspected of commission of any non bailable offence is arrested or
detained without warrant by an Officer I/C of a Police station or appears or is
brought before a court other than the High Court or court of Session he may be
released on bail.

Thus section 437 empowered a Magistrate to take bail in non bailable offences.
The provision of this makes it clear that bail in non bailable offences depends
upon the discretion of the court.

When bail shall be Granted:- Sec. 437(1) of the code lays down the following
situations in which bail shall not be granted by the Magistrate:-

i) When the Magistrate believes that there are reasonable grounds of

guilty of offence punishable.

ii) If person has been previously convicted of an offence punishable on

two or more times.

CONDIIONS FOR BAIL

1 Sec. 437(3) of the code provides that where a person accused or suspected of
the commission of an offence punishable which may extend to seven year or
more or of an offence defined in IPC and any such offence the accused is
released on bail the court however may impose any condition which the court
considers necessary:-

1. That such person shall attend in accordance with conditions mentioned in

the bond executed by him.

2. Such person shall not commit an offence of the similar to an offence of

which he is accused or is suspected.

ARREST OF A PERSON
Introduction: – Generally, a person is arrested by the order of the magistrate or
by a warrant. A police officer cannot arrest a person arbitrarily or without the
order of magistrate or without warrant. But this rule has few exceptions to it
which means that under certain circumstances a person can be arrested without
the order of the magistrate or without warrant.

Arrest without warrant:- Sec. 41 of the Criminal Procedure Code 1973 provides
that a police officer can arrest a person without the orders or warrant of the
magistrate in following situations:

(8) When any person 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. Of his having been so
concerned.

(9) When any person has in his possession without lawful excuse any
implement of house-breaking.

(10) When any person in whose possession anything is found which may
reasonably be suspected to be stolen property and who may reasonably be
suspected of having committed an offence with reference to such things.

(11) When any person obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape from lawful custody.

(12) When any person is reasonably suspected of being a deserter from any
of the armed forces of the union.

(13) When any person being a released convict, commits a breach of any rule
made under sub-section (5) of section 356;

(14) When for any persons arrest any requisition, whether written or oral, has
been received from another police officer, provided that the requisition specifics
the person to be arrested.

Thus, in this way a police officer under sec 41(1) can arrest any person without
the order or warrant of a magistrate.

CHARGE
INTRODUCTION: – The object of the rule embodied in the sec. 218 of Cr. P. C.,
is to ensure a fair trial and to see that the accused is not bewildered or perplex
to confuse by having been asked to defend several unconnected charges or
distinct offences lumped together in one charge or in separate charges. We will
read the rules relating to joinder of charges described in different part of this
section. There is no exception to the rule that there should be separate charge
for each offence. The detail study of this section is as under:-

DEFINITION: – For every distinct offence of which any person is accused there
shall be a separate charge and every charge shall be tried separately. Where
the accused person by an application in writing, so desires and the Magistrate is
of opinion that such person is not likely to be prejudiced thereby, Magistrate
may try together all or any number of the charges famed against such person.
1. Effect of Contravention of Sec.218:- The effect of the contravention of the
provisions of this sec. has been considered by the Supreme Court in following
number of cases:- Sushil Kumar v/s Joy Shankar-1971: It was held that charges
under 408 and 477A of IPC could be tried together. In this case several persons
accused on several items of embezzlement were tried jointly. There was no
failure of justice in consequence of the joinder of charges had occurred. In V.N.
KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that the provisions of
sec. 218 to 224 would indicate that separate charge and separate trial for such
distinct offence is the normal rule and joint trial is an exception when the
accused have committed separate offence.”

2. Failure to Explain injuries on the accused:- When the prosecution fails to

explain satisfactorily the injuries sustained by the accused there are number of
judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-1975:
It was held that the accused had inflicted the injuries on the members of the
prosecution party in exercise of the right of self-defence.

3. Three offences of the same kind within year may be charged together:-
under section 219 of Cr. P. C. when a person is accused of more offences than
one of the same kind committed within the space of twelve months from the
first to the last of such offences, he may be charged with and tried at one trial
for any number of them not exceeding three. Provisions of section are only
enabling provisions, it applies where offences are of the same kind but it does
not apply where offences are not of the same kind such as criminal breach of
trust and falsification of accounts. Rahmat v/s State of U. P.-1980.

Trial for than one offence:- If in one series of Acts so connected together as to
form the same transaction more offences than one are committed by the same
person, he may be charged with and tried at one trial for every such

APPEALS & ITS LIMITATION PERIOD

INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied from
judgment finding and orders of the trial court. Under section 372 of the Cr.P.C.,
it is provided that relation to appeal it is necessary to know that no appeal shall
lie from any judgment or order of a criminal court except as provided by this
code or any other law for time being in force, case Garikapati v/s Subhash
coudhari-1957. However the provisions regarding making an appeal are the
following:-

1. Appeal from orders requiring security or refusal to accept or rejecting surety

for keeping peace or good behavior: – Any person who has been ordered to give
security for keeping the peace or for good behavior or who is aggrieved by any
order refusing to accept or rejecting a surety on the basis of sec.373.

2. Appeals from Convictions: – According to section 374 of code that any person
convicted on a trial by a H/C in its extraordinary original criminal jurisdiction
may appeal to Supreme Court similar any person convicted by session judge or
on a trial held by any other court which sentence or imprisonment is more than
7 years may appeal to High court. Case Panchi v/s State of U.P.-1998, In
C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: – Under sec.377, the state Government

may in any case of conviction on a trial held by any court other than a H/C direct
the Public Prosecutor to present an appeal against the sentence on the ground of
its inadequacy to Court of Session if the sentence is passed by the Magistrate or
to the H/C if the sentence is passed by any other Court. When an appeal is filed
against the sentence on the ground of its inadequacy court shall not enhance the
sentence except after giving to the accused a reasonable opportunity of sowing
cause against such enhancement. Case of Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378 the

H/C has full power to review at large the evidence on which the acquittal is
based and to reach the conclusion that the order of acquittal should be reversed
as held in case of Mohandas v/s State of MP-1973, but exercising his power the
H/C should give proper weight and consideration to the view of the trial judge as
to the credibility of witnesses, presumption of innocence in favour of the
accused. And a right of the accused to the benefit of any doubt. It was also held
in State of U.P. v/s Gambir Singh-2005 case of appeal against acquittal if on
same evidence two views are possible, the one in favour of accused must be
preferred.

During the hearing of appeal from the order of acquittal it should be taken into
consideration that there is no miscarriage of justice, case Allahrakha K. Mansuri
v/s State of Gujrat-2002. The order of acquittal cannot be dismissed merely on
the ground that a second approach could have been applied in the case and it
means that the accused could have been convicted on considering another view
a case of Chandra Singh v/s State of Gujrat-2002.

COMPLAINT CASE
DEFINITION: – Sec. 200 says, that the preliminary procedure which a Magistrate
shall follow on receiving a complaint. It is obligatory to examine the
complainant and the witnesses and a summary dismissal without them is not
legal. 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. If a
public servant acting or purporting to act in the discharge of his official duties or
a court has made the complaint or the magistrate makes over the case for
inquiry or trial to another Magistrate under sec.192.

1. Procedure by Magistrate not competent to take cognizance of the case: If a

complaint made to a Magistrate who is not competent to take cognizance of the
offence he shall return it for presentation to the proper court with an
endorsement to that effect or where the complaint is not in writing then he will
direct the complainant to the proper court as provided in sec.201 of Cr.P.C.Case
of Rajender Singh v/s State of Bihar, 1989.

2. To Postponement of issue of Process:- Sec.202 of the code provided that

where it appears to the magistrate that the offence complained is triable
exclusively by the court of Sessions or where the complaint has not been made
by a court unless the complainant and the witnesses present have been
examined on oath under sec.200. If an investigation 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 o arrest
without warrant. Sec. has provided to ascertain the following: i) to ascertain the
facts constituting the offence.

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

iii) To help the magistrate to judge if there is sufficient ground for calling the
investigation and for proceeding with the case. Case: Balraj Khanna v/s
Motiram-1971.

3. Dismissal of Complaint: – A Magistrate may dismiss a complaint if after

considering the statement on oath of the complainant and of the witnesses and
the result of inquiry or investigation under sec.202. But where there is sufficient
ground for preceding the Magistrate cannot dismiss the complaint under sec.203
of the code. If he finds that no offence has been committed, if he distrusts the
statement or if he distrusts the complainant may direct for further inquiry. In
such cases he may refuse to issue process. Case Sulab Chandra v/s Abdula-
1926. These are the provisions under sec.203 of Cr.P.C.

ANTICIPATORY BAIL
INTRODUCTION: – Anticipatory bail has an important place in the series of Bail.
Its main object is to protect the innocent persons from arrest under sec. 438 of
the criminal procedure code-1973 lays down the provisions regarding grant of
anticipatory bail.

What is Anticipatory Bail: – In-spite of the fact that the Cr.P.C., has not defined
Anticipatory Bail but it means that when a person has a reason to believe that
he may be arrested on accusation of having committed a non-bailable offence,
he may apply to High Court or to the court of Session that in the event of such
arrest he shall be released on bail at that time it is anticipatory bail. It is also
called Apprehension Bail on the basis of provisions laid down in sec. 438 of
cr.P.C.

Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a

person from arrest. A person against whom a warrant of arrest has been issued
shall first be arrested kept in custody for few days and then released on bail, it
means where there is no purpose for the arrest he shall not be arrested.

When anticipatory Bail would be Accepted:- Section 438(1) says that, “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 High Court or court of
Session for a direction under this sec.438(1) and court if thinks it fit, can direct
that in event of such arrest he shall be released on bail.” Case of Gurbaksh
Singh v/s State of Punjab-1980, he was not granted anticipatory bail merely on
fear of arrest. In a similar case of Ashok kumar v/s State of Rajasthan-1980,
that anticipatory bail should not accepted until there is a definite fear of arrest
and such fact has come before the court. It is pertinent to mention here that
reason to believe does not mean mere fear, i.e. mere ‘fear’ is not sufficient
cause. Grounds on which belief is based must be capable of being examined.

1. Who shall accept the Anticipatory Bail

a. Sec. 438 (1) that the following authorities may accept the anticipatory bail
application: High Court, Court of Session.

That any accused of an offence and in custody be released on bail on acceptance

of bail application in the above said courts u/s 439 of Cr.P.C.

Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions

for grant of anticipatory bail. Those conditions have been mentioned in section
438(2). When the High Court or Court of Session make a direction with some
conditions in the light of the facts of the particular case as it may think fit for
bail:-

b. That the person shall not leave India without previous permission of the
court. b)That person directly or indirectly make an inducement threat or
promise to any person acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the court or to any police Officer. c. That the
person shall make himself available for interrogation by a police officer as and
when required.

POWERS OF CRIMINAL COURTS

INTRODUCTION: – Chapter III of the criminal procedure code deals with the
Powers of Courts to take cognizance of the offences. For this purpose the
offences are divided into two groups, i) Offences under IPC, and ii) offences
under any other law. The courts by which these two offences are triable are
specified below:-

Courts by which these two offences are triable: – As per provisions laid down in
section 26 of the cod, the courts by which offences are triable:-

3. a) Any offence under IPC-45 may be tried by High Court. B) Session

Court. c) Any other court by which such offence is shown in the first schedule to
be triable.

4. Any offence under any other law, when any Court is mentioned in this behalf
in such law, is tried by: i) High Court. ii) Any other court by which such offence
is shown in the first schedule.

Section 27: Jurisdiction in the case of Juveniles: Any offence not punishable with
death or imprisonment for life who at the date when he appears or is brought
before court under the age of 16 years may be tried by the court of CJM or any
other court which specially empowered.

Sentences which High Courts and Session Judges may pass: – As per provision
laid down in Sect. 28 of the code that:- (i) High Court may pass any sentence
authorized by law. (ii) Session Judge or ADJ may pass any sentence authorized
by law but any sentence of death passed by such judges shall be subject to
confirmation by the High Court.

Sentences which Magistrates may pass:- Sec.29 of Code, The court of CJM may
pass any sentence authorized by law except sentence of death or of
imprisonment for life or imprisonment for a term exceeding 7 years.

The court of Magistrate of First Class may pass a sentence of imprisonment for a
term not exceeding three years or of fine not exceeding Rs.10, 000.

The court of 2nd Class Magistrate may pass an imprisonment for a term not
exceeding One year or of fine not exceeding Rs.5000/- or of both.

Sentence of Imprisonment in default of fine:-The court of Magistrate may award

such term of imprisonment in default of payment of fine as authorized by law
under sec.30 of the code, not exceeding one fourth of the term of imprisonment
and also not excess of the powers.

SUMMARY TRIALS
On the basis of provisions under section 260 of the code, power to try
summarily: – notwithstanding anything contained in this code, Any CJM, Any
metropolitan Magistrate or any Magistrate of the first class specially empowered
in this behalf by the High Court, may if thinks fit try a summary way in all or any
of the following offences. Summary trial can also be done by the magistrate of
second class u/s 261 of the code; the High Court may confer on any magistrate
invested with the powers of a Magistrate of the second class. If any from the
above Magistrate’s thinks fit, may try in a summary way for all or any of the
following offences:-

1. Offences not punishable with death imprisonment for life imprisonment for a
term exceeding two years.

2. Theft under sec. 379, 380 and 381 of IPC where the value of the property
stolen does not exceed two thousand rupees.
3. Receiving of retaining of stolen property under sec.411, IPC, where the
value of the property does not exceed two thousand rupees.

4. Assisting in the concealment or disposal of stolen property under sec. 414 of

IPC, where the value of such property does not exceed two thousand rupees. 5.
Offences under section 454 and 455 of IPC.

6. Insult with intent to provoke a breach of the peace under sec. 504 and with
imprisonment for term which may extend to two years or with fine or with both,
under sect. 506 of IPC. 7. Abetment of any of the foregoing offences. 8. An
attempt to commit any of the foregoing offences when such attempt is an
offence.

The mode of trial is sought to be altered under this sub-section the trial must
from its inception to be conducted in the regular manner, case of State v/s
D.N.Patel-1971. The Magistrate under this section as a discretion o try the
offences specified in this section in a summarily way.

Procedure of summary trials: – Under sec. 262 of the code is related to the
procedure for summary trial, shall be the same as in summons case except in so
far as it is modified by the provisions. In the case of summary trial the limit of
term of sentence of imprisonment is three months. However if the court is
considers it necessary 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 summon
case according to the nature of the offence.

PLEA BARGAINING
Under section 265A of the code, described that the application of the
provisions of this section in respect of accused against whom the report has
been forwarded by the officer in charge of Police station under sec.173, the
offence appears to have been committed by him and the Magistrate has taken
cognizance of an offence on complaint other than an offence for which the
punishment of death or life imprisonment or imprisonment for a term exceeding
seven years and examining complainant and witnesses issued the process as per
law.

Application for plea bargaining: Sec.265B of the code lays that a person accused
of an offence may file application for plea bargaining in the court in which the
offence is pending for trial. The application accompanied by an affidavit sworn
by the accused stating therein that he has voluntarily preferred after
understanding the nature and extent of punishment provided under the law for
the offence the plea bargaining in his case and that he has not previously been
convicted by a court in a case which he had been charged with the same
offence.

FINALITY OF THE JUDGEMENT:- The judgment delivered by the court under

section 265G shall be final and no appeal except the special leave petition under
article 136 and writ petition under article 226 and 227 of the Indian constitution
shall lie in any court against such judgment.

POWER OF THE COURT IN PLE BARGAINING:- A court shall have for the
purposes of discharging its functions under the provisions in section 265H, all he
powers vested in respect of bail, trial of offences and other matters relating to
the disposal of a case in such court on the basis of above provisions.

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