CRIMINAL PROCEDURE

S. D. Balsar a*
Revised by Dr. K. N, Chandrasekharan Pillar'·'

Introductory

The Code of Criminal Procedure, 1973 came into force on April 1, 1974. It
would, therefore, be proper to make a brief mention of the important
changes brought about by the new Code in the administration of criminal
justice. While making changes in criminal procedure, ParUament has adhered
to three basic principles of procedural law, namely,
(i) The accused person should get a fair trial in accordance with the
accepted principles of natural justice. Because a criminal trial involves
human issues, the right to a fair trial is accepted as a basic object of the
Code.
(ii) Delay in investigation and trial which is harmful not only to the
individual concerned but also to the society must be avoided without
sacrificing the fairness of the trial.
(iii) The procedure should be simplified and should, to the utmost extent
possible, ensure fair deal to the poorer sections of the community.
With these objects in view the following important changes have been
brought about by the new 1973 Code:
(a) Committal Proceedings, that is, the time-consuming preliminary enquiry
in a magistrate's courts which precedes regular trial by the court of
session, have been abolished.
(b) Summons procedure (which is must less time-consuming than warrant
procedure) has been extended to trial of offences punishable with two
years' imprisonment instead of one year's imprisonment under the
former Code. Similarly, procedure for summary trials covers offences
punishable with one year's imprisonment instead of imprisonment for
six months.
(c) The powers of revision against interlocutory orders and the provision
for compulsory stoppage of proceedings by a subordinate court on the
mere intimation from a party of its intention to move a higher court for

* Formerly Principal, Government Law College, Bombay.

* Director, Indian Law Institute, New Delhi.
212 INDIAN LEGAL SYSTEM

transfer of the case have been done away with because they have proved
to be very time-consuming.
(d) Adjournments are sought to be made difficult by empowering the court
to order costs to be paid by the party obtaining adjournment to the
other party.
(e) Provision is made for service of summons by registered post and
pleading guilty by post in petty cases.
(f) Successors in office in courts of session and in magistrates' courts can
continue with part-heard cases instead of hearing them de novo.
(g) To provide relief to the poorer sections of the community, following
important provisions have been introduced:
L Compulsory legal aid to indigent accused at least in cases triable by
a court of session.
ii. The payment of compensation by the accused to the victims of
crimes.
iii. Ordering the payment of costs incurred by the defence, including
advocate's fees, when a commission is issued for the examination of
a witness for the prosecution.
(h) A separation of the judiciary from the executive, whereby the functions
of the magistrates under the old Code have been allocated between the
judicial and the executive magistrates, has been brought about.
Uniformity in this respect has been effected throughout the country, by
the new Code. It is felt that matters involving appreciation or sifting of
evidence or the formulation of any decision which exposes any person
to any punishment or penalty, are functions which could be exercised
justly and properly only by persons who are trained in law and have
essentially judicious minds. O n the other hand, function which are
administrative or executive in nature, such as granting of license, the
suspension or cancellation of license, sanctioning of a prosecution or
withdrawing from a prosecution, are to be exercised by an executive
magistrate. The designation of presidency magistrate has been done
away with and magistrates of metropolitan areas are now called
metropolitan magistrates. Any city or town whose population exceeds
one million may be declared by the state government to be metropolitan
area.

Aid to the magistrates and the police

(a) Every person is bound to assist a magistrate or police officer:

i. in arresting or p r e v e n t i n g escape of any person w h o m the
magistrate or officer is authorized to arrest; or
ii. in the prevention or suppression of a breach of the peace; or
CRIMINAL PROCEDURE 213

iii. in the prevention of any injury attempted to be committed to any

railway, canal, telegraph or public property.
(b) Every person is bound to give information to the nearest magistrate
or police officer of the commission or intention to commit an
offence against the state or public tranquility, offence relating to
illegal gratification, currency notes, bank notes, adulteration of food
and drugs, offences of murder, culpable homicide, theft with
preparation for robbery, robbery, criminal breach of trust by public
servant, mischief against property, house trespass and lurking house
trespass.
(c) For the security of villages located in remote areas, village officers
and all villagers are made responsible to give information relating to
several matters to the nearest magistrate or officer-in-charge of the
nearest police station in respect of certain offences, robbers,
proclaimed offenders, etc.
(d) Any private person may arrest any person who, in his presence,
commits a non-bailable and cognizable offence, or any proclaimed
offender, and shall promptly hand him over to a police officer.

Arrest of persons

(a) In certain specific cases only, most notable being cognizable offences,
any police officer may, without an order from a magistrate and without
a warrant, arrest any person. The only limitations to the wide power
given to police officers in cognizable cases are the requirements of
"reasonable suspicion" and "credible information." A police officer
cannot arrest on mere vague allegations.
(b) In case of non-cognizable offences, a police officer cannot arrest a
person without a warrant, unless the person has, in the presence of a
police officer, committed or has been accused of committing a non-
cognizable offence and refuses to give his name and address or gives a
name or address which the officer has a reason to believe to be false.
(c) When an offence is committed in the presence of a magistrate, whether
executive or judicial, and when he is competent to issue a warrant, he
may himself arrest or order any person to arrest the offender.
Members of the armed forces of the Union cannot be arrested for
anything purported to be done by them in the discharge of their official
duties except after obtaining the consent of the central government. The
state government may, by notification, apply these provisions to members of
the forces charged with the maintenance of public order.
As regards apprehending judicial officers for alleged commission of
offence, the police has to inform the District Judge or the High Court
214 INDIAN LEGAL SYSTEM

before a formal arrest is made. They are not to be taken to the police station
without the prior permission of the District Judge or High Court.
The procedural safeguards of arrested persons spelt out in international
documents have now been made applicable to the arrested persons in
India.1
The person arresting has no right to cause death, unless, the person
resisting the arrest is accused of an offence punishable with death or
imprisonment for life. All other means necessary to effect an arrest may be
employed.
Police officers and persons acting under a warrant of arrest can compel
householders to afford fascilities for. search and if difficulties are placed in
the way, force may be used to effect ingress.

Examination of the accused by medical practitioner

(a) at the request of police officer

When a person is arrested on a charge of committing an offence of such a

nature and alleged to have committed it under such circumstances that there
are reasonable grounds for believing that an examination of his person will
afford evidence as to the commission of an offence, it shall be lawful for a
registered medical practitioner, acting at the request of a police officer, to
make such an examination of the arrested person as is reasonably necessary
in order to ascertain the facts which may afford such evidence and to use
such force as is reasonably necessary for that purpose.

(b) at the request of the accused himself

An arrested person may be examined at his own request so as to elicit

evidence which will disprove the commission by him of any offence or
which will establish the commission by any other person of an offence
against his body. A magistrate has to direct such examination, unless he feels
that the request is vexatious or is made for defeating the ends of justice.

Duration of arrest

A person arrested without warrant cannot be detained for a longer period

than is reasonable and such period shall not exceed twenty-four hours
exclusive of the time for the journey from the place of arrest to the
magistrate's court. The magistrate can authorize detention beyond twenty-
four hours.

1. See O.K. Basu v. State of West Bangal (1997) 6 SCC 642.

CRIMINAL PROCEDURE 215

However, no arrested person could be remanded to police custody for

more than 15 days in a case.2

Processes to compel appearance and production of things

To compel appearance, summons, warrant of arrest, proclamation and order

for attachment of property of person absconding may be issued by a court.
Whenever production of certain documents or things is necessary or
desirable for the purpose of any investigation, enquiry, trial or other
proceedings under the Code, the court may issue summons or the officer in
charge of a police station may issue a written order to a person in whose
possession or power such documents or things is believed to be. According
to the Calcutta High Court even an accused person can be called upon to
produce a document and such an order would not violate the privilege
against self-incrimination under the Constitution, because it would not
amount to compelling a person to be witness against himself.
If a document, parcel or thing is in the custody of a postal or telegraph
authority and is wanted for investigation, etc., a district magistrate, court of
session or High Court may require the postal or telegraph authority to
deliver it according to the court's order.
Where a court has reason to believe that a person to whom summons or
order may be addressed is not likely to produce the document or things or
where such document or thing is not known to be in the possession of any
person, or where the court considers that the purpose of any enquiry, trial,
etc., will be served by a general search or inspection, it may issue a search
warrant. A power of search and seizure is an overriding power of the state,
in any system of jurisprudence, for the protection of social security.
Therefore, the Supreme Court has held that a search by itself is not a
restriction of the right to hold and enjoy property and that search and
seizure are only a temporary interference with the right to hold the premises
searched and the articles seized.
A person is charge of a place liable to search must, on production of the
warrant, allow free ingress to it and afford all facilities for search. Otherwise
doors or windows may be broken open. The police are bound to allow the
occupant of the place to be present during the search and must call upon
two or more independent and respectable inhabitants to attend and witness
the search. A list of all the things searched shall be prepared and then signed
by the witnesses. A copy must be delivered to the occupant.
A district magistrate, sub-divisional magistrate or magistrate of the first
class may order the search of a place suspected to contain stolen property,
forged documents, false seals, obscene objects, pieces of metal made in

2. CBI v. Anupam J. Kulkarni (1992) 3 SCC 141: (1992) Cri. LJ 2768.

216 INDIAN LEGAL SYSTEM

c o n t r a v e n t i o n of the Metal Tokens Act or b r o u g h t i n t o India in

contravention of the Customs Act, counterfeit coins, currency notes or
stamps, or instruments or materials used in the production of any such
articles.
Realizing that in our country there is an ever-present danger of friction
between classes or communities, the state government is vested with the
power to forfeit (and to issue a search-warrant for that purpose) any
newspaper or book or document, including any painting, drawing,
photograph or other visible representation, likely to promote sedition or
obscenity, or to create ill-feelings between communities or classes, or to
hurt the feelings of any particular community.
Any interested person may apply to the High Court to set aside such
declaration of forfeiture on the ground that the publication does not contain
any seditious, obscene, etc., matter. A special bench of the High Court
composed of three judges shall, if it is not satisfied that the publication is
seditious, obscene, etc., set aside the declaration of forfeiture.
If any magistrate has reason to believe that any person is confined under
such circumstances that the confinement amounts to an offence, he may
issue a search warrant, and the person, if found, shall be immediately taken
before a magistrate who shall make such order as he deems proper. Further,
magistrates are empowered to compel restoration of liberty to women
abducted for any unlawful purpose.

Prevention of Offences
Believing that prevention is better than cure, the Code first provides
machinery for prevention of offence, before laying down the procedure for
punishment of offence. The subject may be considered under the following
broad heads.

1. Security proceedings

These provisions are directed against persons who are a danger to public
because of commission of certain offences. It is believed that magisterial
authority is a powerful adjunct to executive authority, most effective if used
in moderation and over a sufficiently extended period, though harmful if
resorted to immoderately.

(a) Security proceedings for keeping the peace on conviction

When a person is convicted of (i) rioting, affray or making imputations

prejudicial to national integration (offences against public tranquility), (ii)
assault, using criminal force, committing mischief, (iii) any offence involving
breach of the peace, or (iv) criminal intimidation, and the court (including
CRIMINAL PROCEDURE 217

the appellate court) is of the opinion that it is necessary that such a person
should execute a bond for keeping the peace, it may, at the time of passing
the sentence itself, order him to execute a bond for a sum proportionate to
his means, with or without sureties, for keeping the peace for a period not
exceeding three years.
There was a conflict of opinion as to the meaning of the expression
"offences involving breach of the peace". The Calcutta and the Madras High
Courts held that it meant offences in which a breach of the peace was in
ingredient and that there must be an express finding by the court that the
offence committed did involve a breach of the peace. The Allahabad and the
Bombay High Courts held that the expression was not necessarily so
confined, but extended to offences provoking, or likely to lead to, a breach
of the peace. The new Code prefers the latter view and specifically provides
for the taking of a bond in case of "any other offence which caused, or was
intended, or known to be likely, to cause, a breach of the peace."

(b) Security proceedings for keeping the peace on likelihood of a

breech of the peace

If a person is likely to (i) commit a breach of the peace, (ii) disturb the
public tranquility, or (iii) do any wrongful act that may occasion a breach of
the peace or disturb the public tranquility, the court may require such
person to show cause why he should not be ordered to execute a bond, with
or without sureties, for keeping the peace for a period not exceeding one
year.
The information on which the court acts must be clear and directly
affecting the person against whom the process is issued and should disclose
tangible facts and details, so that it may give him notice of what he has to
come prepared to meet. Evidence which is vague, or insufficient, or which
deals in generalities or hearsay evidence does not justify action taken under
this provision. Again a bond can be taken only for keeping the peace and
not for "maintaining good behaviour."

(c) Security for good behaviour

Security for good behaviour may be taken by the court from persons
(i) disseminating seditious or obscene matter promoting enmity between
classes, making imputations prejudicial to national integration,
maliciously insulting any religion;
(ii) disseminating matter concerning a judge amounting to criminal
intimidation or defamation; (In order that a person may be bound over
in these cases, it must be shown that he is in the habit of intentionally
disseminating seditious matter, etc., and there must be a danger of his
continuing such activities unless he is prevented from doing so).
218 INDIAN LEGAL SYSTEM

(iii) taking precautions to conceal their presence with a view to committing

a cognizable offence.
(Under the new Code, the provisions relating to the binding over of
persons without ostensible means of subsistence or persons who cannot
give a satisfactory account of themselves are deleted on the ground that
with the growing unemployment in the country and the consequent
vagrancy, there is absolutely no justification in binding over persons
w i t h o u t ostensible means of livelihood or those w h o cannot
satisfactorily account for themselves. This change is in keeping with the
spirit of safeguarding personal liberty of the citizens. The new Code
only proposes to bind over persons taking precautions to conceal their
presence when there is reason to believe that they are doing so with a
view to committing a cognizable offence).
(iv) who habitually commit kidnapping, abduction, offences against property
or offences involving breach of the peace, or
(v) who are so desperate and dangerous as to render their being at large
without security hazardous to the community.
(Cases iv and v above deal with persons who are adept in committing
serious offences of specialized nature. The two cases are intended to
p r o t e c t the public against irresponsible criminal maniacs and
desperadoes, but is not intended for use against merely undisciplined
people).
The new Code requires a bond to be executed also by a person w h o
habitually commits, or attempts to commit, or abets the commission of
(i) any offence under one or more of the following Acts, viz.,
(a) the Drugs and Cosmetics Act, 1940;
(b) the Foreign Exchange Regulation Act, 1947;
(c) the Employees' Provident Fund Act, 1952;
(d) the Prevention of Food Adulteration Act, 1954;
(e) the Essential Commodities Act, 1955;
(f) the Untouchability (Offences) Act, 1955;
(g) the Sea Customs Act, 1962; or
(ii) any offence punishable under any other law providing for the
prevention of hoarding or profiteering or of adulteration of food or
drugs, or of corruption.
Before ordering a person to execute a security bond in all the above
cases, the court must conduct a proper inquiry as to the t r u t h of the
information upon which it proposes to take action. The inquiry should be,
as far as possible, of the same type required in summons cases. The fact that
a person is a habitual offender or is desperate or dangerous may be proved
CRIMINAL PROCEDURE 219

by evidence of general repute. If it is proved that a man who lives in a

particular place is looked upon by his fellow-towns-man as a man of bad
repute, that is strong evidence that he is a man of bad character. A few High
Courts have even held that hearsay evidence, amounting to evidence of
general repute, is admissible. In the new Code, this view is accepted as
regards habitual offenders and desperadoes.
After such inquiry, the court may discharge the person informed against
or order him to execute a bond with or without sureties. The amount of the
bond must be fixed with due regard to the circumstances (that means, the
amount must be reasonable and must not be excessive). An excessive
amount of security, which disables a person from furnishing the security,
practically amounts to sending him to jail without being tried and convicted
for any offence. In case of minors, the bond shall be executed only by his
sureties.
(Further, under the new Code, having regard to the long delays
occurring in concluding the proceedings, six months time-limit is laid down
for the conclusion of the proceedings, and for the automatic termination of
the proceedings after the expiry of the six months time limit, unless for
special reasons to be recorded in writing, the court otherwise directs. Even
when such a direction is made, the sessions judge may, on an application
made to him by the aggrieved party, vacate such direction, if he is satisfied
that it was not based on any special reason or was perverse. Again, where a
person has been kept in detention pending such an inquiry, proceedings
against that person must be terminated on the expiry of a period of six
months of such detention).
Where the bond is taken for good behaviour, there is a breech of the
bond, if an offence punishable with imprisonment is committed, attempted
or abetted by him. Similarly, a bond for keeping the peace is broken, if the
person does some act which is likely, in its consequences, to provoke a
breach of the peace. In either case, the surety's bond can be forfeited, the
person-committed breach may be arrested and detained in prison until the
expiry of the period of the bond.
If any person ordered to give security does not give it within the
prescribed time, he shall be committed to prison, or if he is already in
prison, be detained in prison, until such periods expires or until (within such
period) he gives security. The imprisonment awarded for failure to give
security for keeping the peace (in cases (a) and (b) mentioned above) is
simple and that for good behavior (in case of (c) mentioned above) may be
rigorous or simple. Where the period of security exceeds one year in
duration, the proceedings shall be laid before the session's judge or the High
Court.
The chief judicial magistrate may release, with or without conditions,
persons imprisoned for failing to give security, if he thinks that there is no
220 INDIAN LEGAL SYSTEM

hazard to the community or to any person. The High Court, the court of
sessions and the chief judicial magistrate are also given the discretion to
reduce the amount of security, or the number of sureties, or the period. If a
condition upon which any person has been discharged is not fulfilled, the
order may be cancelled. Such person shall then give security for the
unexpired term or undergo imprisonment for the unexpired term.
The High Court or the court of session or the chief judicial magistrate
may, at any time, for sufficient reasons to be recorded in writing cancel any
bond for keeping the peace or for good behavior executed by its order or by
the order of any subordinate court.

2. Dispersal of unlawful assembly or assembly likely to cause

disturbance of the public peace.

An unlawful assembly, or an assembly of five or more persons likely to

cause a disturbance of the public peace, may be commanded to disperse
either by an executive magistrate, or by officer-in-charge of a police station,
or during the latter's absence, by any police officer not below the rank of a
sub-inspector.
Once a command is issued, it is the duty of the members of such
assembly to disperse.
If the assembly does not disperse when commanded or if the assembly,
without being commanded, shows by conduct a determination not to
disperse, force may be used to disperse it. For dispersal of such assembly,
the aid of any male civilians may be requisitioned and persons who form
part of such assembly may be arrested and confined and punished according
to law.
If the measure proves ineffective, the magistrate of the highest rank
who is present may cause it to be dispersed by the armed forces, who, while
obeying such requisition, must use minimum force and cause minimum
injury to person and property.
In cases of emergency, when no magistrate is present, a commissioned
or gazetted army officer can act on his own initiative, but he should try to
communicate with the nearest magistrate at the earliest opportunity and
obey his instructions as regards continuance or otherwise of his action.
To prevent harassment on flimsy grounds of persons who act under
these provisions, sanction of the central government or the state
government, as the case may be, is necessary to launch prosecution against
members of the armed forces or others, for taking steps to disperse an
assembly. Further no member of the armed forces is liable for any offence,
if he has done the act in obedience to an order which he was bound to obey;
and no other person acting under these provisions would be liable for any
offence if he has acted in good faith.
CRIMINAL PROCEDURE 221

3. Removal of public nuisance

Though public nuisance is not so dangerous as occasions for keeping the

peace or good behaviour, nor of such emergency nature as unlawful
assemblies, it is yet fraught with such potential danger as to warrant
summary preventive action.
In six categories of public nuisance, which are specifically enumerated,
on receipt of police report or other information, the magistrate may pass a
conditional order. The persons served with such order may (a) carry out the
order, or (b) show cause against the order.
If the person ordered does not carry out the order, nor does he appear
before the magistrate, the order is made absolute. Similarly the order is made
absolute, if the cause shown is not satisfactory. For example, where the
engine of a factory was causing nuisance to the neighborhood, and where a
rice mill w o r k i n g at night was causing nuisance to the neighboring
inhabitants, the court forbade the working of the engine and rice mill at
night.
If the person successfully shows cause, the conditional order is
discharged.
If the person denies the existence of any public right in any way, river,
channel or place, the court will hold a preliminary inquiry and if it finds that
there is reliable evidence in support of such denial, e.g., the record of rights
or settlement officer's receipt, it shall stay the proceedings until the matter
of the existence of such right is decided by a competent civil court. If there
is no reliable evidence in support of the denial, the court may make the
order absolute.
If an absolute order made under any of the above provisions is not
carried out within the specified time, the person ordered may be prosecuted
under section 188 of the Indian Penal Code for disobedience to an order of
a public servant. Further the court may carry out the order and recover the
costs from the defaulter.
If immediate measures are necessary to prevent imminent danger or
serious injury to the public, the court may, pending the inquiry, issue an
injunction. The court may also order a person not to repeat or continue
public nuisance. This power has come to the rescue of people in protecting
environment in certain cases.
This summary remedy for the abatement of public nuisance is not
meant t o give a final adjudication on questions of title, and, therefore,
the order is no bar to the maintainability of a civil suit to establish
propriety rights. However, the court cannot compel either party to go to a
civil court.
222 INDIAN LEGAL SYSTEM

4. Temporary orders absolute in urgent cases of nuisance or

apprehended danger

While cases of ordinary public nuisance devoid of urgency are dealt in

the manner mentioned in ' 3 ' above, sometimes the very urgency of the case
demands the laying aside of usual formalities of an inquiry.
If a magistrate is of opinion that immediate preventions or speedy
remedy is desirable, he may pass a written order (even an ex parte order in an
emergency) stating the material facts and directing a person and persons
residing in a particular area, or the public generally when frequenting or
visiting a particular place, to abstain from a certain act or to take certain
order with certain p r o p e r t y in his possession or management. The
magistrate must consider that such direction is likely to prevent obstruction,
annoyance or injury to any person lawfully employed or danger to human
life, health or safety, or a disturbance of public tranquility or a riot or an
affray. For example, such an order may be passed to widen and heighten the
door-way of a temple with a view to preventing overcrowding and
improving ventilation, or it may be an order prescribing different hours of
worship at a mosque by different sects of Muslims. However, no order
which is irrevocable in its nature, (e.g., an order to cut down a large quantity
of trees) can be passed. So also, the order to the public prohibiting the
publication or circulation of false and alarmist reports is invalid, because no
order can be issued to the public generally except when frequenting or
visiting a particular place.
In the order, two things should be specifically mentioned, the thing
which is prohibited and the persons who are prohibited. The magistrate may
rescind or alter the order motu proprio or on the application of the aggrieved
person who is entitled to be heard. Even if the application is rejected,
reasons for rejection should be recorded in writing. A superior magistrate is
also empowered to rescind or alter an order made by a subordinate
magistrate, but the superior magistrate cannot make a new order. The order
can remain in force for two months. But in cases of danger to human life,
health or safety, or a likelihood of a riot or affray, the state government may,
by notification in the official gazette, extend it for a longer time not
exceeding six months. Under the 1973 Code the state government also may,
either of its own motion or on the application of the person aggrieved,
rescind or alter any order made by it.
The Supreme Court has held that these provisions do not violate the
fundamental rights of citizens to freedom of speech and expression and to
assemble peaceably and without arms. In a conflict between public necessity
and private rights, the former must prevail.
CRIMINAL PROCEDURE 223

5. Summary settlement of disputes about immovable property

Realizing that the maintenance of public peace is the supreme necessity in

any civilized administration, provision is made to bring to an end, by a
summary process, disputes relating to immovable property, which are from
their very nature likely, if not suppressed in time, to erupt into breach of the
peace. Rights of individuals may have to be temporarily sacrificed for
maintaining peace and tranquility. The object of these provisions is to take
the subject of dispute out of the hands of the disputants, and to make one
of them its custodian, until the other establishes his right to possession in a
civil court. The business of the court is not to go into the question of title,
but to meet the urgency of the situation by maintaining the party in
possession till ousted by due process of law.
W h e n the magistrate is satisfied, from a police report or other
information, that (1) within his jurisdiction a dispute concerning land or
water (which term includes standing trees, crops, tents, building markets or
fisheries) exists and that (ii) it is likely to cause a breach of the peace, he
shall make an order, stating his grounds and requiring the parties concerned
in such disputes to put in written statement of their claims of possession.
After hearing the parties the perusing the documents and evidence
submitted by them, the magistrate shall, as far as possible, decide which of
the parties was in possession of the property. If within two months before
the date of the police report or other information, any party had been
forcibly dispossessed, the magistrate may treat him as if he had been in
possession. After his decision, the magistrate issues an order declaring such
party to be entitled to possession until evicted in due course of law and
forbidden all disturbances until such eviction. Pending final decision, the
magistrate may also attach, in cases of emergency, the subject of dispute and
also pass orders regarding custody or sale of crops and other produce likely
to decay speedily.
If the magistrate is unable to decide which of the parties was in
possession of the subject of dispute, or is of the opinion that one of the
parties was in possession, or considers the case to be one of emergency, he
may attach the property and appoint a receiver for it.
Similarly, in case of a dispute likely to cause a breach of the peace
regarding any alleged right of user of any land or water, the magistrate shall
hear the parties, receives evidence and decide whether such right exists. If
he so decides, he shall pass an order prohibiting any interference with the
exercise of such rights.

6. Preventive action of the police

It is the duty of every police officer to interpose for the purpose of

preventing any offence, cognizable or non-cognizable. If a cognizable
224 INDIAN LEGAL SYSTEM

offence cannot otherwise be prevented a police officer may, without orders

from a magistrate, arrest a person designing to commit it. The arrested
persons cannot be detained in custody for more than twenty-four hours
unless further detention is lawfully authorized. The courts have laid down
that once a person is arrested a detained, the executive has to justify its
action in the sense that the detention is either for violation of some law or
for preventive purposes as prescribed by law.
A police officer may also interpose to prevent any injury attempted to
be committed in his view to any public property, movable or immovable, or
the removal or injury of any public landmark or buoy or other mark used for
navigation.
Any officer in charge of a police station may enter any place for
inspecting or searching for any weights or measures or instruments for
weighing, whenever he has reason to believe that they are false. If he finds
false weights, measures or instruments, he may seize them and shall give
information of such seizure to a magistrate.

7. Maintenance of wives and children and parents

If a person, having sufficient means, refuses or neglects to maintain his (a)

wife unable to maintain herself, or (b) legitimate or illegitimate minor child,
whether married or not, unable to maintain itself, or (c) his legitimate or
illegitimate child (not being a married daughter) who has attained majority,
but is, by reason of any physical or mental abnormality or injury unable to
maintain itself, or (d) his father or mother unable to maintain himself or
herself, he may be ordered to make a monthly allowance.
Maintenance of wife and children is basically a civil matter; but the
justification for providing for it in the criminal law is to make available to
them a more speedy and economical remedy than is available in civil courts,
and thus prevent starvation and vagrancy leading to the commission of
crime.
The person to be made liable must have sufficient means. "Sufficient
means," however, should not be confined to the actual pecuniary resources,
but should have reference only to "earning capacity."
Though maintenance ordinarily means appropriate food, clothing and
lodging, a mere maintenance of the body is not sufficient in the present state
of society and provision ought to be made for the children's developing
mind and conscience.
To find out the legitimacy of a child, there is no provision either in the
Code of Criminal Procedure or in the Evidence Act empowering the court
to order any test of the minor or the parents when the father is disputing the
legitimacy of the minor. By consensus courts used to order D N A test to
determine legitimacy.
CRIMINAL PROCEDURE 225

These provisions apply and are enforceable whatever may be the

personal law of the parties concerned. Again they have nothing to do with
conjugal rights, but deal with maintenance only, a wife, cannot, therefore,
live separately from her husband, on the ground of impotence, and claim
separate maintenance. A denial of martial intercourse or avoiding the society
of the wife may prove a husband's neglect of wife, but a distinction must be
drawn between neglecting her and neglecting to maintain her.
While determining the quantum of maintenance for the wife, the court
must steer clear of t w o extremes. O n the one hand, it must not give
maintenance which would keep her in luxury and would make separation
profitable, thus impeding any future reconciliation. On the other hand,
maintenance must not be penurious. "Wife" includes a woman who has
been divorced by, or has obtained a divorce from, her husband and has not
remarried.
A wife is not entitled to receive an allowance from her husband and
even if such an order is passed it will be cancelled, if (a) she lives in adultery
(living in adultery is to be distinguished from occasional lapses into
immorality) or (b) she refuses to live with her husband without sufficient
cause (if the husband offers to maintain his wife provided she lives with him
and she refuses to do so, the magistrate may consider the grounds of refusal
and may order maintenance if those grounds are just. If is a just ground for
the wife to refuse to live with her husband, if he has contracted another
marriage or "keeps" a mistress) or (c) they are living separately by mutual
consent.
An order for maintenance in favour of a wife shall be cancelled, if she
re-married or if she received the whole of the sum which, under any
customary or personal law applicable to the parties, was payable on such
divorce.
All evidence in such proceedings must be taken in the presence of the
person against whom an order for maintenance is proposed to be made or
in the presence of his pleader. If, however, the person concerned is willfully
avoiding service or neglecting to attend the court, the magistrate may pass ex
parte orders.
If a person, ordered to pay maintenance, fails to comply with the order,
the court may (a) issue a warrant for levying the amount due as if it were a
fine, and (b) sentence him from the whole or any part of each month's
allowance remaining unpaid after execution of the warrant, to imprisonment
for a term which may extend to one month or until payment, if sooner
made.
By way of an explanation, the Criminal Procedure Code stated that the
term "wife" includes a woman who has been divorced or has obtained a
divorce from, her husband and has not remarried. While interpreting this
226 INDIAN LEGAL SYSTEM

provision the Supreme Court ruled in Mohamed Ahmed Khan v. Shah Banoo
Begum,3 that section 125 was applicable to Muslims also. This generated a
controversy and debate leading to the enactment of Muslim women
(Protection of Rights on Divorce) Act, 1986 declaring that Muslim personal
law would be applicable to Muslims if they have not specifically chosen to
be governed by section 125 of the Criminal Procedure Code. The Supreme
Court has however interpreted the provisions of this Act making it
obligatory for the Muslims to pay maintenance to their wives.

Investigation and Enquiry

Information to the police and their power to investigate cognizable

cases

Offences are divided under the Code into two categories: cognizable and
non-cognizable. A cognizable offence is one of which any police officer may
arrest without warrant. When he does not have that power under the law,
the offence is non-cognizable.
If information relating to the commission of cognizable offence is given
orally to an officer in charge of a police station and not to any body else, it
is reduced to writing, read over to the informant, signed by the latter and its
substance is entered in a prescribed book. If the information is in writing, it
must be signed by the informant and the substance thereof is entered in the
prescribed book. A copy of the recorded information must be given
forthwith, free of cost, to the informant. Again if a police officer refuses to
record the information, the substance thereof may be sent t o the
superintendent of police who, if satisfied that the information discloses the
commission of a cognizable offence, may investigate the case or cause it to
be investigated. The "first information report", as it is popularly called, need
not contain every relevant fact not need indicate the motive for the crime,
or the names of the offenders, or the witnesses to the offence.
In Ramkumar v. State ofM.P."' the Supreme Court stated that though an
FIR is a statement which can, strictly speaking, be only used to corroborate
or contradict the maker of it, omission of important facts, affecting the
probabilities of the case, are relevant under section 11 of the Evidence Act
in judging the veracity of the prosecution case. In this case the FIR was
make by the father of the murdered boy to whom all the important facts of
the occurrence were bound to have been communicated. Further, it may be
given by any one aware of the offence, not necessarily by the aggrieved party
only. Telegrams and telephonic messages cannot be treated as first
information reports.

3. (1985) 2 SCC 556.

4. AIR 1975 SC 1026.
CRIMINAL PROCEDURE 227

Where the accused is the informant and the information is non-

confessional, it is admissible against the accused as an admission under
section 2 of the Evidence Act and is relevant
The receipt and recording of first information is not a condition
precedent to starting of investigation by the police.
O n receiving information of the commission of a cognizable offence,
the police officer must send a report to a magistrate empowered to take
cognizance of such offence and proceed to investigate the facts and to take
measures for the arrest of offender unless the informant gives the name of
the offender and the offence is not a serious nature. If the police officer
thinks that there are not sufficient ground for investigation, he must notify
the informant that he will not investigate. Police officers are duty bound to
scrutinize the complaint and refrain from building up a case on its basis,
unless satisfied of its truth. They are primarily the guardians of the liberty of
innocent persons are not falsely implicated. Though the Code gives the
police unfettered power to investigate in the case of cognizable offence, an
aggrieved person can always invoke the powers of the High Court under
article 226 of the Constitution under which the High Court can issue a writ
of mandamus restraining the police officer from misusing his powers.
O n receipt of the report, the magistrate may direct investigation, have a
preliminary enquiry held, or otherwise dispose of the case, but he has no
power to interfere with the progress of the investigation and stay or suspend
it.
The investigating police officer may, by written order, require the
attendance of persons acquainted with the circumstances of the case.
However, no child under 15 years of a woman can be compelled to attend at
any place other than its or her residence. The police officer may examine
them orally and they are to answers to which would have a tendency to
expose them to a criminal charge. The person examined should answer
"truly" all questions. The reasons for the absence of the word "truly" in the
previous Code and the insertion of it under the 1973 Code are quite
interesting. It was considered unfair that a man should be liable to be
convicted of giving false evidence on the strength of a statement which is
n o t given on o a t h , which he has not signed and w h i c h he had no
opportunity of verifying. However, now the insertion of the word "truly" is
supported on the grounds that prosecutions for giving false evidence are
rare enough, and their successful termination rarer still and that the same
reasons would operate more effectively to inhibit prosecutions for making
false statements to the police.
When a statement made to the police is reduced into writing, it is not to
be signed by its maker. Such a statement is not to be used for any purpose at
any enquiry or trial, except that it may be used by the accused to contradict
the maker when he is called as witness for the prosecution. It can also be
228 INDIAN LEGAL SYSTEM

used by the Evidence Act but only with the permission of the court, or it
may be used in his re-examination for explaining any matter referred to in
the cross-examination. An omission to state a significant and relevant fact or
circumstance in the statement may amount to contradiction. In Tahsildar
Singh v. The State o/U.P.s the Supreme Court held that relevant and material
omissions in the statement to the police amount to vital contradictions
which can be established by cross-examination and confronting the witness
with his previous statement.
This subject of the use of the recorded statements of the witness is
highly controversial and in the Code an attempt is made to find a happy via
media, namely that while prohibiting the use of the statement, the accused is
allowed to rely upon it for the limited purpose of contradicting a witness. It
cannot, however, be used for corroboration of prosecution or defense or
court witness. Again, this provision is limited to prosecution witnesses only.
The previous statement of a defense witness cannot be used either by the
prosecution or by the defense for the purpose of c o r r o b o r a t i n g or
contradicting him. However, there is nothing to prevent a judge from
looking into the police dairy motu proprio and using the statement for the
purpose of contradicting such person.
A police officer shall not offer any inducement, threat or promise to any
person making a statement, nor shall he, by caution, prevent any person
from making voluntary statement.

Non-cognizable cases

In the case of information of non-cognizable offence, the police officer is

not to investigate without the order of an authorized magistrate, but should
enter the substance of the complaint in the prescribed book and refer the
informant to a magistrate. Once the magistrate's order is received, the police
officer may exercise the same powers in respect of investigation as he may
exercise in a cognizable case.

Recording of confessions and statements

In the course of investigation or before enquiry or trial commences, any

metropolitan or judicial magistrate may record a statement or confession.
Before recording a confession, the magistrate must explain to the person
making it, that he is not bound to make it and that it may be used as
evidence against him and he must be satisfied upon questioning the person
making it, that it was made voluntarily. The confession must be signed by
the person making it, and the magistrate shall make a memorandum stating
that it has been explained to the accused that he is not bound to make it and
that it may be used as evidence against him, that it was voluntarily made,

5. AIR 1959 SC 1012.

CRIMINAL PROCEDURE 229

that it was taken in his presence and hearing, that it was read over to him,
that it was admitted by him to be correa and that it contained a full and true
account of the statement made by him. The provisions of the Code must be
complied with both in letter and spirit. If an accused person expressed his
desire to confess, he ought to be put in judicial lock-up and allowed enough
time to reflect on the consequences. Further, he must be told that after he
makes his confession, he would not be delivered to police custody, but
would be sent to judicial lock-up. After the confession he must be taken to
judicial lock-up. If at any time before the confession is recorded, the person
appearing before the magistrate states that he is not willing to make the
confession, the magistrate shall not authorize the detention of such person
in police custody. Again, the confession should not be recorded in the
presence of police officers. It should, usually, be recorded in a court of law
during the court hours.
A declaration is not a confession, if it is not made with an intention to
confess.
A conviction can be based on a retracted confession and there is a
presumption that a confession is voluntarily made.

Search by police officer

Normally a search must be made under a warrant by the court, but a police
officer, having reasonable grounds for belief that anything necessary for the
purposes of an investigation into an offence may be found in any place and
that it cannot be otherwise obtained without undue delay, he should record
in writing the grounds of his belief specifying the thing for which search is
to be made. H e should also forthwith send a copy of the record to the
nearest magistrate. The owner or occupier of the place searched shall, on
application, be furnished with a copy of the same. The persons of the pancha
witnesses and of the police party must be searched before they enter the
house so that the owner should not have reasonable grounds for suspecting
that something is surreptitiously planted in his house.
An Indian citizen's house is his castle. Next to bodily liberty comes the
freedom of his house. Just as a citizen cannot be deprived of his personal
liberty except under authority of law, similarly, no police officer has a
prerogative to forcibly enter a citizen's house except under the authority of
law, which is open to examination by courts of law. However, an illegal
search would not vitiate the trial.

Completion report

When a police officer has completed investigation, he must make an official

report to the magistrate. In order that the accused may not be taken by
surprise, he must also furnish to the accused, free of cost, a copy of the
230 INDIAN LEGAL SYSTEM

report, of the first information report and of all documents on which the
prosecution relies including the recorded statements and confessions of
persons whom the prosecution proposes to examine as witnesses. In the
public interest, however, parts of statements may be excluded. The
magistrate to whom the facts of exclusion must be reponed, may direct the
part excluded to be furnished to the accused. The new Code transfers the
duty of furnishing copies to the accused from the police officer to the
magistrate.
The completion report is also known as charge-sheet and is absolutely
necessary. It corresponds to the complaint of a private individual on which
criminal proceedings are initiated.

Report on unnatural or suspicious death

On receiving information of suicide, murder, accident or death under

suspicious circumstances, a police officer must, in the presence of at least
two respectable inhabitants of the locality, make an on the spot investigation
and draw up a report of the cause of death. H e must forward it to the
magistrate. He may forward the body for medical examination. (In Bombay
and Calcutta, the coroner, and not the police holds inquests).
In cases reported to him the magistrate may, and when a person dies in
police custody the magistrate shall, hold an enquiry into the cause of death,
either instead of or in addition to the investigation held by the police officer.
He may even cause the dead body of any person to be disinterred and
examined.

Procedure when investigation cannot be completed in 24 hours

Whenever a person is detained in custody and it appears that the

investigation cannot be completed within twenty-four hours and there are
grounds for believing that the accusation is well founded, the police officer
making the investigation shall forthwith transmit to the judicial magistrate a
copy of the entries in the diary relating to the case and shall at the same time
forward the accused to such magistrate. The magistrate may authorize a
detention of the accused for a term not exceeding fifteen days on the whole.
A magistrate having jurisdiction to try the case may authorize further
detention of the accused person, otherwise than in police custody, for a total
period not exceeding sixty days. On the expiry of the period of sixty days,
the accused person shall be releasedon bail. This power of releasing the
accused on bail after sixty days is exercisable only during pendency of the
investigation. If a charge-sheet is filed in the court, the investigation comes
to an end and the magistrate does not have to release the accused on bail.
Then section 437 of the Code of Criminal Procedure comes into play. 6 If, in

6. Umed Singh (1975) 16 Guj. L.R. 572.

CRIMINAL PROCEDURE 231

any case triable by a magistrate as a summons case, the investigation is not

concluded within a period of six months from the date on which the
accused was arrested, the magistrate must make an order stopping further
investigation into the offence, unless the officer satisfied the magistrate that
for special reasons and the interests of justice the c o n t i n u a t i o n of
investigation beyond the period of six months is necessary.
Detention of an accused person for more than twenty-four hours in
police custody would be illegal. An accused person is entitled to legal
assistance and to make any representation he may wish to make in the
matter.
If upon an investigation, it appears to the police officer that there is
sufficient evidence or reasonable ground, the officer must forward the
accused under custody to the magistrate or if the offence is bailable, he must
take security from him for his appearance before the magistrate.

Territorial jurisdiction of criminal courts in enquiries and trials

Place of enquiry and trials: The scheme of the Code is to enlarge as much as
possible the ambit of the places in which the trial of an offence might be
held and to minimize the inconvenience which would be caused to the
prosecution by the success of the technical plea that the offence was not
committed within the local limits of the jurisdiction of the trying court.
Again, the mere fact that the court had no territorial jurisdiction to try cases
is no ground to set aside any finding or sentences passed by a criminal court
unless want of jurisdiction has in fact occasioned failure of justice. Besides
some special rules for some particular offences, three broad principles have
been laid down. They are:
1. Every offence is to be enquired into and tried by the court within the
local limits of whose jurisdiction it was committed or any act done or
any consequence ensured. (The consequences must form a part and
parcel of the offence. The act and the consequences together must
constitute the offence).
2. (a) When it is uncertain in which of several local areas an offence was
committed, or (b) where an offence was committed partly in one local
area and partly in another, or (c) where an offence was a continuing one
and continued to be committed in more local areas than one, or (d)
where it consisted of several acts done in different local areas, it may be
enquired into or tried by a court having jurisdiction over any of such
local areas.
3. Where an act is an offence by reason of its relation to any other act
which is also an offence, the first-mentioned offence may be enquired
into or tried by a court within the local limits of whose jurisdiction
either act was done.
232 INDIAN LEGAL SYSTEM

In cases of doubt regarding jurisdiction, the High Court will decide the
court where enquiry or trial shall take place.
Offence committed outside India: When an offence is committed by (a) any
citizen of India in any place outside India, or (b) any person on any ship of
aircraft registered in India wherever it may be, he may be dealt with at any
place within India at which he may be found, whether brought legally or
illegally, provided that the central government gives its previous sanction.
When such offence is tried, the central government may direct that copies of
deposition made or exhibits produced before a diplomatic or consular
representative of India or a judicial officer in or for that territory shall be
received in evidence by the trial court.
In Savarkar's case7 Savarkar was being brought to India by a ship to
stand trial for sedition. When the ship touched Marseilles (France), he
slipped away from the ship and was running on the shores of France
pursued by his captors. He was rearrested, according to him illegally, and
brought to India. When he was tried at Nasik, he pleaded that he was
brought illegally from a foreign country. The Bombay High Court held that
the defense would not avail him, because "found" means not where a
person is discovered, but where he is actually present. Even when a man is
brought to a place against his will or illegally he can be said to be found
there.

Conditions requisite for initiation of proceedings

Any magistrate of the first class and any other magistrate specially
empowered, may take cognizance of any offence (a) upon receiving a
complaint of facts which constitute such offence, or (b) upon a report in
writing of such facts made by any police officer, or (c) upon information
received from any person or upon his own knowledge or suspicion that such
offence has been committed.
When a magistrate takes cognizance of an offence upon information
received from a person other than a police officer or on his own knowledge,
the accused is to be informed that he is entitled to have the case tried by
another court. If the accused objects to being tried by such magistrate, the
case shall be committed to the court of sessions of transferred to another
magistrate.

Who can complain

The general rule is that any person may set the criminal law in motion,
because crimes are anti-social acts. To this rule, however, there are some
exceptions provided in order to avoid multiciplicity of proceedings and also

7. (1910) 35 Bom. 225: 13 Bom. L.R. 296.

CRIMINAL PROCEDURE 233

to prevent false complaints and vexatious proceedings. Thus no court can

take cognizance of
1. C o n t e m p t of lawful authority of a public servant, except on the
complaint of the public servant or his superior.
2. Offences against public justice or relating to documents given in
evidence, except on the complaint of the court concerned or superior
court.
3. Criminal conspiracy or offences against the state, except with the
previous sanction of the central or the state government.
4. Offences committed by a judge, a magistrate or a public servant, except
with the previous sanction of the employer state government or the
central government.
5. Defamation, or offences relating to marriage, except upon a complaint
by some aggrieved person; (In case of adultery or enticing away of a
married woman, the complaint must be by the husband). When the
aggrieved person suffers from some incapacity, another person may,
with the leave of the court, make a complaint on his behalf.
6. Defamation against public servants (including the President, the Vice-
President, a Governor or a minister) in respect of his conduct in the
discharge of his public functions, except upon a complaint made by the
public prosecutor with the previous sanction of the central or the state
government as the case may be.
Complaints to magistrates: Barring a few exceptions, a magistrate taking
cognizance of an offence on complaint shall at once examine the
complainant and the witness present upon oath. The substance of the
examination shall be reduced to writing and shall be signed by the
complainant, witness and the magistrate. If the complaint is made to a
magistrate who is not competent to take cognizance, he must direct the
complainant to the proper court. On receipt of the complaint the magistrate
may postpone the issue of process and either enquire into the case himself
or direct an enquiry for ascertaining the truth. If, after considering the
statement on oath of the complainant and witness and the result of the
e n q u i r y , the magistrate feels that there is no sufficient ground for
proceeding, he may dismiss the complaint. He must briefly record his
reasons for so doing.
Though section 190 says that a magistrate may 'take cognizance of an
offence', it means "must" take cognizance and the magistrate has no
discretion, otherwise article 14 of the Constitution of India (equality before
law) would be violated. Such dismissal of a complaint is no bar to a re­
hearing on a fresh complaint on the same facts by the same or any other
magistrate presiding in the same court.
234 INDIAN LEGAL SYSTEM

If, on the other hand, there is sufficient ground for proceeding, he

issues a summons or a warrant as the case may be. However, n o process
shall be issued until a list of the prosecution witness has been filed. If a
summons (not a warrant) is issued, the magistrate may dispense with the
personal attendance of the accused and permit him to appear by his pleader.
At any subsequent state, the magistrate may order the personal attendance
of the accused. In case of petty offences, i.e., offences punishable with fine
not exceeding one thousand rupees, the magistrate shall issue summons to
the accused requiring him either to appear in person or by pleader or to
transmit before a specified date, by post or by messenger, a plea of guilty
and the amount of fine specified in the summons, which amount should not
be more than one hundred rupees.

Charge

What is a charge?

The charge is equivalent to a statement that every legal condition required

by law to constitute the offence charged is fulfilled.8 A charge, in simple
language, means accusation. It is, however, different from an allegation
made by the complainant in that the charge is drawn up by a magistrate
when a prima facie is made out against the accused.

Contents: Every charge shall state

(a) The offence with which the accused is charged.

(b) The specific name of the offence, if the law which creates the offence
gives it a specific name, and if no specific name is given, so much of the
definition of the offence as to give the accused notice of the matter with
which he is charged.
(c) The law and section of the law against which the offence is said to have
been committed.
(d) Particulars as to the time and place of the offence and the person
against whom or the thing in respect of which it was committed.
(e) The particulars of the manner in which the offence was committed, if
the accused does not otherwise have sufficient notice.
The charge is equivalent to a statement that every legal condition
required by law to constitute the offence charged is fulfilled.
If t h e accused by reason of any previous conviction is liable t o
enhanced punishment, or to punishment of a different kind, and it is
intended to prove such previous conviction for the purpose of affecting the

8. See S. 211(5).
CRIMINAL PROCEDURE 235

punishment, the particulars of the previous conviction shall be stated in the

charge. If such statement has been omitted, the court may add it at any time
before sentence is passed.

Subsequent framing or alteration of charge

When a person is committed for trial without a charge, or with an imperfect

or erroneous charge, the court may frame, add to or alter the charge. Any
c o u r t may add t o or alter a charge at any time before j u d g m e n t is
pronounced. Thereafter, the court may proceed immediately with the trial, if
it is not likely to prejudice the accused or the prosecutor; if a prejudice is
likely, the court may direct a new trial or adjourn the trial for such period as
may be necessary. If the prosecution of the offence in the altered charge
requires previous sanction which has not been obtained, the proceeding
should be stayed until such sanction is obtained. When the charge is altered
or added to, the prosecutor and the accused shall be allowed to recall
witnesses and also to call further witnesses.
Effect oferrors or omission in charge: N o error or omission in stating the offence
or the particulars thereof shall be regarded as material unless the accused is
misled by it and it has occasioned a failure of justice. If any appellate court
or the High Court in exercise of its powers of revision or confirmation of
sentence is of the opinion that any person convicted of an offence was
misled in his defense by an absence of, or error in, charge, it shall direct a
new trial. If no valid charge can be preferred in respect of the facts proved,
the court shall quash the conviction.
The courts, however, have been slow to upset a decision on the ground
of error or omission in the charge. In Chitaranjan Das v. State of Bengal? the
Supreme Court has held that if a particular date or time is not mentioned in
the charge, the charge is not invalid solely for that reason. Undue emphasis
on mere technicalities is not desirable. But it is open to the court, in such
cases, to come to the conclusion that a failure to frame the charge more
precisely has led to prejudice.
Joinder of charges: In order that the accused is not bewildered in his defense by
several totally unconnected charges and the mind of the court may not be
prejudiced, the Code provides that for every distinct offence there shall be
a separate charge and every such charge shall be tried separately. Non-
compliance with this provision vitiates the whole trial unless any of the
following exceptions applies:
1. Three offences of the same kind committed within a year may be
charged together against a person whether in respect of the same person
or not. (Offences punishable with the same kind of punishment under

9. AIR 1963 SC 1096: (1963) 2 Cri. LJ 534.

236 INDIAN LEGAL SYSTEM

the same section of the Indian Penal Code or of any special or local law
are offences of the same kind. Attempt to commit an offence and the
offence itself are offences of the same kind. So also are the theft and
theft in a building).
2. If more offences than one are committed by the same person in one
series of acts so connected together as to form the same transaction, he
may be charged with and tried at one trial for every such offence.
3. If the acts alleged constitute an offence falling within two or more
separate definitions, the accused may be charged with, and tried at one
trial for, each of such offences.
4. When one or m o r e than one of several acts w o u l d by itself or
themselves constitute one offence and when they are combined, they
constitute a different offence, the accused may be charged with and
tried at one trial for both the types of offences. (In exceptions 2, 3, and
4, the offences may be more than three in number and may extend over
a period of more than a year).
5. Where it is doubtful what offence has been committed by a single act or
series of acts, the accused may be charged with having committed all or
any of such offences and any number of such charges may be tried at
once or he may be charged in the alternative with having committed
some one of the offences. In such a case, if the accused is charged with
one offence and it appears in evidence that he committed a different
offence, he may be convicted of that offence, although he was not
charged with it. These provisions ensure that for want of a specific
charge there should not be any failure of justice.
6. When a person is charged with an offence consisting of several
particulars, and only some of the particulars which constitute a minor
offence, or an attempt to commit an offence, are proved, he may,
though not charged, be convicted of such minor offence or an attempt
to commit the offence.
7. Where the accused person so desires in writing and the magistrate is of
the opinion that such person is not likely to be prejudiced thereby, the
magistrate may try together all or any number of charges framed against
that person.
The following persons may be charged and tried together:
(a) Persons accused of the same offence or different offences committed in
the course of the same transaction;
(b) Person accused of an offence and persons accused of abetment or of an
attempt to commit such offence;
(c) Person accused of more than one offence of the same kind committed
by them jointly within a year;
CRIMINAL PROCEDURE 237

(d) P e r s o n s accused of theft, e x t o r t i o n , cheating o r c r i m i n a l

misappropriation, and persons accused of receiving or retaining or
assisting in the disposal or concealment of property obtained by the
commission of these offences, or of abetment of, or attempting to
commit such offences;
(e) Person accused of receiving, or retaining, or dealing in, or assisting in
the disposal or concealment of stolen property;
(f) Person accused of an offence relating to counterfeit coin and persons
accused of any other offence relating to the same coin, or of abetment
of, or attempting to commit, such offence;
(g) A number of persons charged with separate offences w h o do not fall
within any of above-mentioned categories but who apply in writing to
be tried together and the magistrate is satisfied that such persons would
not be prejudicially affected thereby.
When a conviction takes place on one or more of several heads of a
charge, the prosecution or the complainant may, with the consent of the
court, withdraw the remaining charges, or the court of its own accord may
stay further proceedings. Such withdrawal shall amount to an acquittal on
such charges, unless the conviction is set aside, in which case the court
(subject to the order of the court setting aside the conviction) may proceed
with the enquiry into or trial of the charges withdrawn.

Trials

(1) Trial before a court of session

In every trial before a court of session, the prosecution shall be conducted

by a public prosecutor. When the accused appears or is brought before the
court the prosecutor shall open his case by describing the charge brought
against the accused and stating by what evidence he proposes to prove the
guilt of the accused.
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the accused and
the prosecution in his behalf, the judge considers that there is not sufficient
ground of proceeding against the accused, he shall discharge the accused
and record his reasons for so doing.
If, after such consideration and hearing as aforesaid, the judge is of the
opinion that there is-ground for presuming that the accused has committed
an offence which
(a) is not exclusively triable by the court of sessions, he may, frame a charge
against the accused and by order, transfer the case for trial to the chief
judicial magistrate, and thereupon the chief judicial magistrate shall try
the offence or cause the offence to be tried by a competent magistrate
238 INDIAN LEGAL SYSTEM

in accordance with the procedure for the trial of warrant cases instituted
on a police report;
(b) is exclusively triable by the court, he shall frame in writing a charge
against the accused.
Where the judge frames any charge, the charge shall be read and
explained to the accused and the accused shall be asked whether he pleads
guilty of the offence charged or claims to be tried.
If the accused pleads guilty, the judge 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 is not convicted, 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. On the date so fixed, the judge shall proceed to
take all such evidence as may be produced in support of the prosecution.
The judge may, in his discretion, 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.
If, after taking the evidence for the prosecution, examining the accused
and hearing the prosecution and the defense 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.
Where the accused is not acquitted, he shall be called upon to enter on
his defense and adduce any evidence he may have in support thereof. If the
accused puts in any written statement, the judge shall file it with the record.
If the accused applies for the issue of any process for compelling the
attendance of any witness or the production of any document or thing, the
judge shall issue such process unless he considers, for reasons t o be
recorded, 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.
When the examination of the witness (if any) for the defense is
complete, the prosecutor shall sum up his case and the accused or his
pleader shall be entitled to reply, provided that where any point of law is
raised by the accused or his pleader, the prosecution may, w i t h the
permission of the judge, make his submissions with regard to such point of
law.
After hearing arguments and points of law (if any), the judge shall give
judgment in the case. If the accused is convicted, the judge shall, unless he
releases the accused on probation, hear the accused on the question of
sentence, and then pass sentence on him according to law.
CRIMINAL PROCEDURE 239

In a case where a previous conviction is charged and the accused does

not admit that he has been previously convicted as alleged in the charge, the
judge may, after he has convicted the 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 judge nor shall the accused be
asked to plead thereto nor shall previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless and until the accused
has been convicted.
A court of session, taking cognizance of defamation against a person
who, at the time of such commission, is the President of India, the Vice-
President of India, the Governor of a state, the administrator of a Union-
territory, or a minister of the Union or of a state of a Union Territory, or
any other public servant employed in connection with the affairs of the
Union or of a state in respect of his conduct in his discharge of his public
functions, shall try the case in accordance with the procedure for the trial of
warrant cases instituted otherwise than on a police report before a court or
magistrate, provided that the person against whom the offence is alleged to
have been committed shall, unless the court of sessions, for reasons to be
recorded, otherwise directs, be examined as a witness for the prosecution.
Every such trial shall be held in camera if either party to it so desires or
if the court thinks fit so to do. If, in any such case, the court discharges or
acquits all or any of the accused and is of opinion that there was no
reasonable cause for making the accusation against them or any of them, it
may, by its order of discharge or acquittal, direct the person against whom
the offence was alleged to have been committed (other than the President,
Vice-President or the Governor of a state or the administrator of a Union
territory) 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.
The court shall record and consider any cause which may be shown by the
person so directed and if it is satisfied that there was no reasonable cause
for making the accusation, it may, for reasons to be recorded, make an order
that compensation of such amount not exceeding one thousand rupees, as it
may determine, be paid by such person to the accused or to each or any one
of them. The compensation shall be recovered as if it were a fine imposed
by a magistrate. N o person who has been directed to pay compensation
shall, by reason of such order, be exempted from any civil or criminal
liability in respect of the complaint made under this section, 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.

(2) Trial of warrant cases by magistrate

In a warrant case, when the accused appears or is brought before a
240 INDIAN LEGAL SYSTEM

magistrate, the magistrate shall proceed to hear the prosecution (except

when the complaint has been by a court) and take evidence in support of
the prosecution. After taking evidence and examining the accused, if the
magistrate finds that no case has been made out against him, the magistrate
shall discharge him. The magistrate may discharge the accused at a previous
stage also if, for reasons to be recorded, he considers the charge to be
groundless. (An order of discharge does not amount to an acquittal and does
not bar further proceedings against accused).
O n the other hand, if the magistrate considers that the accused may
have committed an offence which he is competent to try and adequately
punish, he shall frame a charge in writing. It shall then be read and explained
to the accused and he shall be asked whether he pleads guilty or has any
defense to make. If he pleads guilty, the magistrate shall record the plea and
may convict him. If the accused does not plead guilty, he shall be required
to state whether he wishes to cross-examine any of the prosecution
witnesses whose evidence has already been taken. After a charge has been
drawn up the accused is entitled to have the prosecution witnesses recalled
for cross-examination, even if he has cross-examined them before, and the
magistrate has no discretion in the matter. The evidence of the remaining
witnesses for the prosecution is then taken.
The accused is then called upon to enter his defense and produce his
evidence. If the accused puts in any written statement, the magistrate shall
file it with the record. The magistrate shall issue process for compelling
production of evidence, oral or documentary, at the instance of the accused,
unless he considers the application of the accused vexatious or as made for
delaying or for defeating the ends of justice.
If after the charge is framed, the magistrate finds the accused not guilty,
he shall record an order of acquittal. If he finds him guilty, he shall pass
sentence upon him according to law, unless he proceeds to release him on
probation or forwards the accused to a superior court for a more severe or
a different kind of punishment. If the complainant is absent on a day fixed
for hearing and the offence is compoundable or non-cognizable, the
magistrate may, at any time before the charge is framed, discharge the
accused. The magistrate may review such an order or the complainant may
file a fresh complaint. If a charge is framed, even if the complainant dies, the
magistrate must proceed with the case.
In a case instituted on a police report the procedure is practically the
same, except that at the commencement of the trial, the magistrate shall
satisfy himself that the documents required by law to be furnished to the
accused have been , or are, furnished to him.
Frivolous accusations in summons and warrant cases
Where the magistrate, in a case of false and either frivolous or vexatious
CRIMINAL PROCEDURE 241

accusations discharges or acquits all or any of the accused, he may call upon
the person upon whose complaint or information the accusation was made,
to show cause why he should not pay compensation to the accused. If the
magistrate is satisfied that the accusation was false and either frivolous or
vexatious, he may direct compensation not exceeding the amount of fine he
is empowered to impose, to be paid by the complainant or informant to the
accused or to any or all of them. The magistrate may also order that, in
default of payment, such person shall suffer simple imprisonment not
exceeding thirty days. Such a person is not exempted from any civil or
criminal liability but any amount paid as compensation shall be taken into
account in awarding compensation in a subsequent civil suit. W h e n
compensation awarded exceeds one hundred rupees and the order is made
by a second class magistrate, the aggrieved person may appeal from the
order.

(3) Trial of summons cases by magistrates

In a summons case, when the accused appears or is brought before the

magistrate, the particulars of the offence of which he is accused shall be
stated to him, and he shall be asked whether he pleads guilty or has any
defense to make. It is not necessary to frame a formal charge. If the accused
pleads guilty, the plea shall be recorded as nearly as possible in the words
used by him and the magistrate may convict him accordingly. In petty cases
the accused may be convicted even in his absence on his plea of guilty sent
by post or by messenger or made through a pleader. The magistrate may
thereupon convict the accused and sentence him to pay the fine specified in
the summons.
If the accused does not plead guilty, or the magistrate does not convict
him on a plea of guilty, the magistrate shall proceed to hear the prosecution
and take all evidence in support of the prosecution and also to hear the
accused and take such evidence as he produces in his defense. Though a
magistrate is not bound to issue process to compel the attendance of a
witness, he must examine all the witness produced by the accused and has
no discretion in the matter.
If the magistrate upon taking evidence and examining the accused finds
him not guilty, he records an order acquittal. If he finds the accused guilty,
he shall pass sentence upon him, unless he releases him on probation for
good conduct or sends the accused to a superior court to receive a
punishment more severe than he can inflict. Whatever may be the nature of
the complaint or summons, the magistrate may convict the accused of any
offence which is triable as summons case and which from admitted or
proved facts he appears to have committed.
If the complainant does not appear on any day of hearing or dies, the
magistrate shall acquit the accused, unless he thinks it proper to adjourn the
242 INDIAN LEGAL SYSTEM

hearing or considers that the attendance of the complainant is not necessary

and dispenses with it or when the complainant is represented by a pleader or
by the officer conducting the prosecution. Again, the magistrate may permit
the complainant to withdraw his complaint and acquit the accused. In the
interest of justice, the court has the power to follow in summons cases and
procedure for the trial of warrant cases.

(4) Summary trials

Specially empowered magistrates and benches of magistrates may try in a

summary way certain prescribed offences (generally speaking, offences
punishable with imprisonment for a term not exceeding two years).
Summary trials are for speedy disposal. T h e y are not intended for
complicated cases which necessitate lengthy enquiry. The object here is to
have a record just sufficient for the purpose of justice but not so bulky as to
hamper speedy disposal.
With certain exceptions, the procedure prescribed for summons cases
shall be followed. The magistrate need not record evidence or frame a
formal charge. O n l y prescribed particulars, such as the date of the
commission of the offence, the plea of the accused and his examination, the
finding, etc. shall be entered.
Besides the prescribed particulars, the court should record the
substance of the evidence and the judgment containing a brief statement of
reasons. In a summary trial, sentence of imprisonment cannot exceed three
months. Even when the accused is convicted of more than one offence, the
aggregate sentence of imprisonment cannot exceed three months. However,
there is no limit on the amount of fine that may be imposed as also on the
alternative sentence of imprisonment in default of fine.

General Provisions as to Enquiries and Trials

Attendance of persons confined or detained in prisons

Whenever in the course of an enquiry, trials or other proceedings, it appears

to a criminal court that a person confined or detained in prison should be
brought before a court for answering a charge of an offence, or for the
purpose of any proceeding against him or for being examined as a witness,
the court may make an order requiring the officer in charge of the prison to
produce such person before the court. The state government has the power
on certain specified grounds to exclude a person or class of persons from
being removed from a prison. The officer in charge of a prison may abstain
from carrying out the order of the court in contingencies and in that event
he should sent to the court a statement of reasons for so abstaining. A court
can also issue a commission for the examination of a prisoner as a witness.
CRIMINAL PROCEDURE 243

Evidence

Evidence must be taken in the presence of the accused, or when his

personal attendance is dispensed with, in the presence of his pleader. If it is
in a language not understood by the accused or his pleader, it must be
interpreted to him in his language. If, however, the accused has absconded
and there is no immediate prospects of arresting him, the court may
examine, in his absence, witnesses for the prosecution and record their
evidence and such deposition may be given against the accused, if the
deponent is dead or incapable of giving evidence or cannot be procured
without unreasonable inconvenience. Similarly, where an offence punishable
with death or life imprisonment is committed by some unknown person, the
High Court or the sessions judge may direct that any magistrate of the first
class shall examine any witnesses who can give evidence and any depositions
so taken may be given in evidence against any person who is subsequently
accused of the offence, if the deponent is dead, or is incapable of giving
evidence or is beyond the limits of India.
In summons cases the magistrate shall make a memorandum of the
substance of the evidence of the witness. In warrant cases evidence shall
ordinarily be taken in the form of a narrative. In trial before a court of
session, evidence shall ordinarily be taken down in the form of question and
answer. The memo of evidence shall be signed by the magistrate or judge
and shall form part of record.
Whenever an accused is examined by a metropolitan magistrate he shall
make a memorandum of the substance of the examination of the accused.
When the accused is examined by any other magistrate or by a court of
session, the question and answers shall be recorded in full. It shall then be
shown or read to the accused and signed by him and by the magistrate or
judge who shall certify that the examination was taken in his presence and
that the record contains a full and true account of the statement made by
the accused.
The High Court has the liberty to prescribe, by general rule, the manner
in which the evidence of witnesses and the examination of the accused shall
be taken down in cases coming before it.
Whenever it appears to a court that the examination of a witness is
necessary for the ends of justice, but his attendance cannot be procured
without unreasonable delay, expense or inconvenience, the court may issue
a commission for his examination. Special provisions have been laid down
regarding depositions of medical witnesses, evidence of officers of the mint
or of the India security press, reports of government scientific experts,
affidavit in proof of conduct of public servants and evidence of formal
character by affidavit.
244 INDIAN LEGAL SYSTEM

Double jeopardy rule (autrefois acquit and autrefois convict)

A person who has once been tried by a court of competent jurisdiction for
an offence and convicted or acquitted of such offence, shall not been tried
again for the same offence, nor on the same facts for any other offence for
which a different charge might have been made or for which he might have
been convicted, except that he may be tried again,
(a) with the consent of the state government, for a distinct offence for
which a separate charge might have been made;
(b) for a different offence constituted by consequences which had not
occurred at the time when he was convicted (e.g. a person convicted
of causing grievous hurt may afterwards be tried for culpable
homicide if the victim dies);
(c) for any other offence constituted by the same acts, if the court by
which he was first tried was not competent to t r y that other
offence;
(d) with the consent of the court by which he was discharged, if the
magistrate stopped, w i t h o u t p r o n o u n c i n g a j u d g m e n t , the
proceedings in a summons case at any stage before evidence of
principle witnesses had been recorded;
(e) if the complaint had been dismissed or the accused had been
discharged (because these do not amount to an acquittal);
(f) where an act or omission constitutes an offence under t w o
enactments, but he shall not be liable to be punished twice for the
same offence.
These provisions give effect to article 20 (2) of our Constitution. (The
Law Commission refrained from settling the controversy that has arisen as
a result of the Supreme Court's suggestion that the doctrine of res judicata,
called "issue estoppel", should apply to criminal cases also).

Legal aid

The accused has a constitutional right under article 22 (1) to consult and be
defended by a legal practitioner of his choice.
In a trial before the court of session, the court shall assign a pleader for
the defense of an indigent accused at the expense of the state.
On the topic of legal aid, the order passed by the Supreme Court in R,
M. Wasawa v. State of Gujarat10 deserves to be quoted extensively:
A petition from jail this is one demands closer judicial care and
we have with deep concern scanned the materials placed before

10. AIR 1974 SC 1143 at 1143-44.

CRIMINAL PROCEDURE 245

us in the light of the grounds of grievance in this appeal. We find

no reason to disagree with the findings of guilt and refuse special
leave. Even so, we are disturbed, having a look at t h e
proceedings in this case, that the Sessions Judges do not view
with sufficient seriousness the need to appoint State Counsel for
undefended accused in grave cases. Indigence should never be a
ground for denying fair trial or equal justice. Therefore, particular
attention should be paid to appoint competent advocates, equal
to handling the complex cases, not partonising gestures to raw
entrants to the Bar. Sufficient time and complete papers should
also be made available... We would... emphasize that in all these
cases there should be a sensitive approach made by the court to
see that the accused felt confident that his counsel chosen by the
c o u r t has had adequate time and material to defend h i m
properly.

Corporation or registered society as an accused

An accused corporation or registered society may appoint a representative

for the purpose of an enquiry or trial.

Tender of pardon to an accomplice

The object in tendering pardon to an accomplice is to prevent the escape of

the offenders from punishment for lack of evidence.
In the case of an offence triable exclusively by the court of session, or
by the court of a special judge, or an offence punishable with imprisonment
of seven or more years, a specially empowered magistrate or the court to
which the case is committed may, at any stage of the enquiry or the trial,
with a view to obtaining the evidence of any person supposed to be directly
or indirectly concerned in, or privy to, the offence, tender a pardon to such
person on condition of his making a full and true disclosure of the whole if
the circumstances within his knowledge relative to the whole of the
circumstances within his knowledge relative to the offence and to every
other person concerned in the commission of the offence. Every magistrate
who tenders a pardon shall record his reasons.
Every person accepting a tender shall be examined as a witness in the
court taking cognizance of the offence and in the subsequent trial. This
provision to examine the accomplice is imperative and non-compliance
renders the trial illegal. Where an accomplice has accepted a tender of
pardon, the magistrate shall, without making any further inquiry, commit the
case for trial to the court of session, or the court of the special judge, or to
the chief judicial magistrate who shall try the case himself. The accomplice,
unless he. is already on bail, shall be detained in custody until the termination
246 INDIAN LEGAL SYSTEM

of the trial. The idea in keeping the approver in custody is not to punish
him, but to protect him from the wrath of his accomplices whom he
chooses to expose, to prevent him from changing sides again and to prevent
him from fleeing from justice.
One Maghar Singh murdered the husband of a lady with whom he was
having immoral relations. At the trial the approver did not say that he took
an active part in the assault on the deceased, but his statement clearly
showed that he was privy to or an a better in the comm. of the offence. The
Supreme Court held that circumstantial evidence may constitute substantial
and sufficient corroboration of an approver's statement in material
particulars. The Supreme Court further held that conviction can be based on
an extra-judicial confession without any corroboration. 11
Where a pardon has been tendered, but the public prosecutor certifies
that the approver has not complied with the condition on which the tender
was made, either by giving false evidence or by willfully concealing anything
essential, and the High Court sanctions the prosecution, the approver may
be tried for the offence in respect of which the pardon was tendered, or for
any other offence of which he appears to have been guilty in connection
with the same matter; and also for the offence of giving false evidence; but
the approver shall not be tried jointly with any of the other accused. Again
he shall be entitled to plead at his trial he has complied with the conditions
upon which such tender was made. (At such trial, the statement made by
him as approver may be given in evidence against him). The court shall first
ask the approver whether he pleads that he has complied w i t h the
conditions on which the tender of pardon was made. If the accused so
pleads, the court shall first find whether or not the accused has complied
with the conditions of pardon, and if it is found that he has so complied, the
court shall acquit him. Only if the court finds that he has not complied with
the conditions of the pardon, he may be tried for the offence alleged to be
committed by him and convicted.
Taking of evidence of accomplice without tendering pardon to him is
not a desirable practice. In Laxmipat Choraría v. The State ofMaharastra,12 a
woman acted as a carrier in a conspiracy to smuggle gold into India. She
admitted her role as a participant in the crime in her statements made to the
customs official investigating the case, but instead of being included in the
list of accused persons and sent up for trial, she was examined as a witness
against her former associates. The question arose whether she was a
competent witness. While holding that she was, the Supreme C o u r t
observed that, in such cases, it is more proper to follow the procedure laid
down for tendering pardon. It is not proper to keep the sword hanging over

11. Maghar Singh v. State ofPunjab AIR 1975 SC 1320.

12. (1964) 67 Bom. L.R. 618.
CRIMINAL PROCEDURE 247

the head of an accomplice and to examine him as a witness, because that

would encourage perjury.

Power to postpone or adjourn proceedings

Though the proceedings shall be held as expeditiously as possible and in

particular, one examination of witnesses has begun, the same shall be
continued from day to day, the court may postpone or adjourn proceedings
when necessary for reasons to be recorded and may remained the accused,
but not for a term exceeding fifteen days at a time.
The court is given powers of local inspection, to accept written
arguments, to dispense with the personal attendance of the accused when
represented by a pleader, to proceed with the trial even if the accused
cannot be made to understand the proceedings, to stay a case and submit it
to his superior, if he finds, after taking evidence that he has no jurisdiction
to try the case or when he cannot pass a sentence sufficiently severe.

Power to examine the accused

To enable the accused to explain any circumstance appearing in evidence

against him, the court may, at any stage of an enquiry or trial, without
previously warning the accused, put such questions to him as the court
considers necessary, and shall, for that purpose question him generally on
the case after the witnesses for the prosecution have been examined and
before he is called on for his defense. If a point in the prosecution evidence
is considered damaging to the accused and it is i n t e n d e d t o base a
conviction upon it, the accused must be questioned about the matter so that
he gets an opportunity to explain it if he so desires. This is an important and
salutary provision which should not be slurred over. On the other hand, the
court should not hold an inquisitorial proceeding and ask incriminating
questions, or questions in the nature of cross-examination, or with a view to
filing up a gap in the prosecution evidence. The court has to do some real
tight rope walking; asking a few omnibus questions is as much inconsistent
with the relevant legal provision as asking unduly detailed and large number
of questions. Written statement by the accused does not take the place of
examination of the accused required by the provision.
The accused shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers; but the court may draw
such inference from such refusal or false answers as it thinks fit. The
answers may also be put in evidence for or against him in any other enquiry
into, or trial for, any other offence which such answers may tend to show he
has committed. N o oath shall be administered to the accused when he is
examined by the court.
248 INDIAN LEGAL SYSTEM

Accused a competent witness

The accused shall be a competent witness for the defense and may give
evidence on oath in disproof of the charges made against him or any person
charged together with him at the same trial; but he shall not be called as
witness except at his own request in writing and no influence, by means of
any promise or threat or otherwise, shall be used to induce him to disclose
or withhold any matter within his knowledge. Further, his failure to give
evidence shall not be adversely commented upon by the parties or the court
or give rise to any presumption against himself or any person charged
together with him at the same trial. Following the principle of privilege
against self-incrimination, formerly the accused was not allowed at all to give
evidence on oath, but in some cases the facts w o u l d be w i t h i n the
knowledge of the accused alone and he alone would be able to rebut the
evidence of the prosecution. Hence this enabling provision has been
introduced in 1955 only for the benefit of the accused.

Compounding of offences

Only certain offences mentioned in the Code, such as simple hurt, assault,
criminal trespass, adultery, defamation, insult and criminal intimidation, can
be compounded by the parties. Here the court has no jurisdiction except to
record a judgment of acquittal. A case may be compounded even while the
court is writing the judgment.
There are some other offences, such as grievous hurt, criminal breach of
trust, cheating and bigamy, which can be compounded only with the
permission of the court.

Composition has the effect of acquittal.

O t h e r offences such as culpable homicide and m u r d e r c a n n o t be
compounded at all.

Accused persons of unsound mind

If a magistrate after having the accused examined by a medical officer of the

state government, is of opinion that an accused is of unsound mind and
consequently incapable of making his defense, he shall record a finding to
that effect, postpone further proceedings in the case and order the accused
to be detained in safe custody. The court may, at any time, after the accused
has ceased to be of unsound mind, resume the enquiry or trial.
The accused, Sindhi Dalwai alias Raman Raghav, created a reign of
terror in Bombay suburbs by committing several murders. He was convicted
by the court of session for the double murder of two brothers. He did not
appeal, but the trial judge made a reference t o the H i g h C o u r t for
CRIMINAL PROCEDURE 249

confirmation of the death sentence. In the High Court, Sindhi's advocates

pleaded that Sindhi was insane and incapable of giving proper instructions.
The Bombay High Court appointed a special medical board. The board
reported that he was suffering from chronic paranoid schizopherenia, that
he knew the nature of the act, that is, he knew that he was killing people,
that he knew that what he was doing was wrong and contrary to the law, but
he believed that what he was doing was right because of a higher "kanoon"
which he was bound to obey and that he was incapable of co-operating with
and instructing the defence counsel. The board concluded that he was
certifiably insane. Accepting this opinion, the Bombay H i g h C o u r t
postponed the proceedings under section 465 of the Code of Criminal
Procedure. The state appealed. The Supreme Court held that a trial does not
conclude until an executable sentence is passed by a competent court and
that confirmation proceedings are in substance a continuation of the trial. In
such confirmation proceedings, the High Court cannot arbitrarily refuse to
hear the accused or his counsel. 13
If the accused is acquitted on the ground of being of unsound mind at
the time at which he is alleged to have committed an offence the court shall
order such person to be detained in safe custody or to be delivered to any
relative or friend on his giving security that the person delivered shall be
properly taken care of and prevented from doing injury to himself or to any
other person. Realizing that a lunatic will receive more personal case and
attention from his own relatives and friends than any public lunatic asylum,
the Law Commission provided for handing him over to his friends or
relatives who may come forward for that purpose.

Provisions as to offences affecting the administration of justice

When any court is of opinion that, in the interest of justice, any enquiry
should be made into an offence affecting administration of justice which
appears to have been committed in or in relation to a proceeding in that
court or in respect of a document given in evidence before that court, such
court may make a complaint in writing to a magistrate of the first class
having jurisdiction. This power in relation to a subordinate court may be
exercised by the superior court also. Any person on whose application any
court other than the High Court has refused to make a complaint or against
whom such a complaint has been made by such court, may appeal to the
superior court. The order of the superior court, or the original court as the
case may be, shall be final and shall not be subject to revision.
Instead of making a formal complaint, a court of sessions or a
magistrate of the first class may summarily try a witness giving false evidence

13. State ofMabarastra v. Sindhi alias Raman (1975) 1 SCC 647: AIR SC 1665.
250 INDIAN LEGAL SYSTEM

of fabricating false evidence and sentence him to imprisonment up to three

months or fine up to five hundred rupees or both.
When a person commits contempt in the presence of any civil, criminal
and revenue court, (or registrar or sub-registrar appointed under the Indian
Registration Act, if the state government so directs) the court may detain the
offender and may, at any time before rising, after giving the offender a
reasonable opportunity, sentence him to a fine not exceeding Rs. 200, and,
in default of payment of fine, to simple imprisonment up to one month.
Where the court considers that the punishment for contempt should be
more severe than mere fine of Rs. 200, the court may forward the case to a
magistrate having jurisdiction to try the offence.
A person who refuses to answer questions or to produce documents
may be committed, after giving him a reasonable opportunity, to the custody
of a court officer up to seven days and if he persists in his refusal he may be
committed for trial.
A witness, who does not attend in obedience to a summons of a
criminal court may be sentenced, after giving him an opportunity to show
cause, to a fine not exceeding one hundred rupees.
An appeal may be preferred in the case of conviction for contempt.
Except in the above cases, no judge of a criminal court (other than a
judge of the High Court) or a magistrate shall try any person for any offence
affecting administration of justice, when such offence is committed before
himself or in relation to himself.

Judgment

Judgment shall be pronounced in open court. Therefore, if a judge, after

writing a judgment dies or hands over charge to his successor, his judgment
is only an opinion and cannot be read over by his successor.
However, a judgment prepared by a judge could be delivered by his
successor and it is not necessary that he should rehear the case.

1. Order to pay compensation

(a) When a court imposes a sentence of fine, it may order the whole or any
part of the fine to be applied in defraying the prosecution expenses, or
in paying compensation for any loss or injury caused by the offence, or
in paying compensation to persons, who are, under the Fatal Accidents
Act, entitled to recover damages for death caused, or in compensating a
bonafide purchaser of property which has been the subject of the
offence if the property is restored to the person entitled to it.
CRIMINAL PROCEDURE 251

When a court imposes a sentence, of which fine does not form a part,
the court may order the accused to pay compensation to the person
who has suffered by the offence.
In any subsequent civil suit, the court shall take into account any sum
paid as compensation.
(b) Whenever any person causes a police officer to arrest any other person,
without sufficient ground, the magistrate, hearing the case, may award
compensation upto one hundred rupees.
(c) When a person is convicted of a non-cognizable offence, in addition to
the sentence, the court may order him to pay costs (including fees for
pleader, witnesses and process) to the complainant.

2. Order to release on probation of good conduct or after

admonition

When a person not under 21 years of age is convicted of an offence

punishable with fine only or with imprisonment for not more than 7 years,
or when a person under 21 years of age, or a woman is convicted of an
offence not punishable with death or imprisonment for life, the court may,
when n o previous conviction is proved and having regard to the age,
character or antecedents of the offender and to the circumstances in which
the offence was committed, instead of sentencing him or her direct that he
or she be released on entering into a bond, with or without sureties, to
appear and receive sentence when called upon within three years, and in the
meantime to keep the peace and be of good behavior.
When a person is convicted of theft, misappropriation, cheating, or any
offence under the Indian Penal Code punishable with fine only or with
imprisonment up to two years and no previous conviction is proved against
him, the court may, having regard to the age, character, antecedents, or
o t h e r extenuating circumstances, instead of sentencing him t o any
punishment release him after due admonition.
An order releasing an offender on probation or good conduct or after
admonition may be made by an appellate court or High Court or court of
session in revision. The High Court or court of session may, on appeal or in
revision, set aside such order, and in lieu thereof pass sentence.
If the court which convicted the offender or the court which could have
dealt with the original offence, is satisfied that the offender has failed to
observe any of the conditions of his release, it may after hearing the case,
pass sentence.
When a court could have released the accused on probation or after
admonition or when it could have dealt with a youthful offender under the
Juvenile Justice Act or similar enactment but has not done so, it shall record
the special reasons for not having done so.
252 INDIAN LEGAL SYSTEM

3. Death sentence

When the conviction is for an offence punishable with death or in the

alternative, with imprisonment, the judgment shall state the reasons for the
sentence awarded, and in the case of sentence of death the special reasons
for such sentence. Sentence of death is extreme penalty to be awarded only
in exceptional circumstances. When any person is sentenced to death, the
sentence shall direct that he be hanged by the neck till he is dead.
When the court of session passes a sentence of death, it must be
submitted to the High Court for confirmation. The High Court may, in such
proceedings, direct further enquiry to be made or additional evidence to be
taken or itself made or take the same. The High Court may confirm the
sentence of death, or pass any other sentence, or acquit the accused or annul
the conviction and convict the accused of some other offence of which the
court of session might have convicted him, or order offence of which the
court of session might have convicted him, or order a new trial. The order
of confirmation shall not be made until the period allowed for preferring an
appeal has expired or until such appeal is disposed of. The order of
confirmation or any new sentence or order passed by the High Court shall
be passed and signed by at least two judges. If the judges are equally divided,
the case shall be referred to a third judge, whose decision may be final.
The constitutionality of death penalty was reiterated in Bachhan Singh v.
State of Punjabi In course of time the Supreme Court has evolved the rarest
of rare case doctrine under which only in rarest of rare cases the death
penalty is awarded by the court.

Appeals, reference, revision and transfers

There is no fundamental or inherent right of appeal. There is right of appeal

only if the Code or some other law so provides.
A person convicted in a trial by a High Court in its extraordinary
original criminal jurisdiction may appeal to the Supreme Court. The person
convicted in a trial by a sessions judge or additional sessions judge may
appeal to the High Court. A person convicted by any other court may appeal
to the court of session. However, when the accused pleads guilty and in
petty cases where the High Court passes a sentence of imprisonment not
exceeding six months or of fine not exceeding one thousand rupees, or
where the court of session passes a sentence of imprisonment not exceeding
three months or of fine not exceeding two hundred rupees, or where a first
class magistrate passes a sentence of fine not exceeding one hundred rupees

14. (1980) 2 SCC 684.

CRIMINAL PROCEDURE 253

or where in summary trials a sentence of fine not exceeding two hundred

rupees is passed, no appeal lies by a convicted person. When the High Court
reverses on appeal an order of acquittal and sentences the accused to
imprisonment for 10 years or more, the accused may appeal to the Supreme
Court.
The state government may appeal to the High C o u r t against any
sentence (except sentence by the High Court) on the g r o u n d of its
inadequacy. In case of an investigation into an offence under any central
enactment other than the Code, the central government may appeal to the
High Court against any sentence on the ground of its inadequacy.
In case of acquittal, no appeal is allowed except with the leave of the
High Court nor is it allowed after sixty days from the date of the order of
acquittal or after six months where the complaint is by a public servant.
Every appeal abates on the death of the accused. Every other appeal
abates on the death of the appellant, except appeal from a sentence of fine
and where the appeal is against conviction and sentence of death or
imprisonment a near relative may get leave from the appellate court to
continue the appeal. (The exceptions provided for are mostly for pecuniary
reasons).
When any court is satisfied that a case involves a question as to the
validity of any Act, ordinance, regulation, or any provision thereof and the
court is of opinion that the same is invalid but has not been so declared by
the High Court or the Supreme Court, it shall state a case setting out its
opinion and the reasons therefor and refer the same for the decision of the
High Court. The case is then to be disposed of according to the decision of
the High Court.
The High Court or any sessions judge may call for and examine the
record of any inferior court for the purpose of satisfying itself or himself as
to the correctness, legality or propriety of any finding sentence or order and
as to the regularity of any proceedings of such court.
The High Court and sessions judge, may, in revision, exercise all the
powers of an appellate court. The High Court is not authorized, in revision,
to convert a finding of acquittal into one of conviction. If an appeal lies,
then no proceedings by way of revision shall be entertained, but if an
application for revision is made under the errorneous belief that no appeal
lies, the High Court may treat the revision application as petition of appeal.
The Supreme Court, the High Courts and the sessions judges have been
empowered under different circumstances to transfer cases and appeals
from one court to another.

Execution, suspension, remission and commutation of sentences

Execution of death sentence must be postponed until the period allowed for
254 INDIAN LEGAL SYSTEM

preferring appeal to the Supreme Court expires or, if appeal is preferred,

until such appeal is disposed of.
If a woman sentenced to death is found to be pregnant, the High Court
shall postpone the execution of the sentence, and may commute the
sentence to imprisonment for life.
When a person has been sentenced to punishment for an offence, the
appropriate government may, at any time, without conditions or upon
conditions, suspend the execution of sentence or remit the whole or any
part of the punishment to which he has been sentenced. If the condition is
not fulfilled the appropriate government may, without consent of the person
sentenced, commute a sentence to a lesser one.
A new section, viz., section 433 A has been added to the Code laying
down that in the case of commutation of sentence awarded to serious
offenders such as murderers, the actual period of imprisonment should be
14 years. In other words, a person sentenced to life imprisonment for
murder has to have served 14 years of imprisonment before any period
could be remitted.

Bail

Liberty is a most valuable right and when the accused applies for bail, he
seeks this right from the court. The following four broad principles have
been adopted in the Code in regard to bail:
1. In offences which are specified in the Code as bailable, bail is a matter
of right. However, where a person released on bail has absconded or
has failed to appear before the court on the dates fixed, he shall not be
entitled to bail when brought to court on any subsequent date. Again,
the High Court has inherent power to cancel the bail of a person
accused of bailable offence, if he obstructs the course of justice by
tampering with the witnesses, threatening them, etc. A trial must be fair
to the accused as well as to the prosecution.
2. If the offence is specified as non-bailable, bail is a matter of discretion.
3. N o bail shall be granted if the offence is punishable with death or
imprisonment for life but if the accused is a women or a minor under
16, or a sick or infirm person, the court has a discretion to grant bail.
Again the court has discretion to grant bail if the trial is not concluded
within a period of sixty days from the first date fixed for taking
evidence.
4. Anticipatory bail may be granted with or without conditions by the
High Court or the court of session on the application of a person who
has reason to believe that he may be arrested on an accusation of having
committed a non-bailable offence.
In effect it is an order to the police officer to release the person on bail
in case he has to be arrested.
CRIMINAL PROCEDURE 255

The amount of bond shall be fixed with due regard to the circumstances
of the case and shall not be excessive. The High Court and the court of
session may cancel bail or may reduce the bail.
A surety may apply, at any time, to be discharged and as soon as the
person on bail is brought to the court, it shall direct the bond of the surety
to be discharged and if the person on bail is unable to find other sufficient
sureties, he may be committed to jail.

Disposal of property

As regards any kind of document which is produced before the court or

which is in its custody, or propeny regarding which the offence appears to
have been c o m m i t t e d or which appears to have been used for the
commission of any offence, the court is given power (a) to pass interim
orders for custody and disposal of the property pending inquiry or trial, and
(b) to pass final orders when the trial or inquiry is concluded. The disposal
of property may be by way of destruction, confiscation, restoration to the
person dispossessed, delivery to the person claiming to be entitled to it, sale
etc. Out of the various modes of disposal of the propeny, the particulars
mode is to be adopted in each case is naturally left to the discretion of the
court. If no claimant appears within six months, the court may put the
property at the disposal of the state government.

Irregular proceedings

The broad principle is that no error, omission, or irregularity in the

proceedings under the Code of in any sanction for the prosecution shall
make any finding or sentence reversible unless, in the court's opinion, a
failure of justice has in fact been occasioned thereby. Whether objection
could and should have been raised at an earlier stage is a factor to be
considered by the court in determining whether the error, etc. has occasioned
a failure of justice. Besides stating this broad principle the Code enumerates
specific irregularities which would vitiate the proceedings. O n the other
hand, there are specific provisions saving irregularities in certain matters and
also a residuary provision saving irregularities in general.
As regards confessions or other statements of the accused the defect in
recording is curable, but a defect in following the procedure, such as giving
proper waning and putting the required questions, would be fatal.

Limitations for taking cognizance of certain offences

Believing that the sword of Damocles should not be kept hanging for ever
over the head of the accused in petty offences, and that the testimony of
witnesses becomes weak, as time passes, because of lapse of memory with
the result that danger of error becomes greater, the new Code for the first
256 INDIAN LEGAL SYSTEM

time provides that no court shall take cognizance of an offence after the
expiry of the following period of limitation:
(a) Six months, if the offence is punishable with fine only.
(b) One year, if the offence is punishable with imprisonment upto one year;
(c) Three years, if the offence is punishable with imprisonment upto three
years.
However, all the sting from these provisions has been taken away by
providing that a court may take cognizance of an offence after the expiry of
the period of limitation, if it is satisfied, on the facts and in the
circumstances of the case, that the delay has been properly explained or that
it is necessary so to do in the interest of justice.

Court martial

If a person commits an offence for which he could be tried under the Code
and also by a court martial under the Navy, Army, or Air Force Acts, it is
for the military authorities to decide whether or not he should be tried by a
court martial.
If the military authorities decide for trial by a court martial, the
magistrate, on an application to him, must deliver the accused if he is
brought before him.

Inherent power of the High Court

The code does not limit or affect the inherent powers of the High Court
(a) to make such orders as may be necessary to give effect to any order
under the Code, or
(b) to prevent the abuse of the process of any court, or
(c) to secure the ends of justice.
Though jurisdiction is very wide in scope, the High Courts have
accepted in practice that it is to be exercised only in exceptional cases. It
cannot be invoked with respect to any matter covered by some specific
provisions of the Code, of it its exercise would be inconsistent with some
specific provisions of the Code, or when there is some other remedy
available under law, e.g., an application to the Supreme Court, or revision or
even a civil proceeding. For the High Court to exercise that jurisdiction, the
injustice should be of a grave and not trivial character, it should be clear and
palpable and there must not be any other provision of law by which the
party aggrieved could have sought relief.
It is interesting to see that the High Court have been authorized to
exercise this power to do justice as the Supreme Court exercises its power
under article 142.
CRIMINAL PROCEDURE 257

In B.S. Joshi v. State ofHaryana15 it was ruled by the Supreme Court that
the High Court could quash a proceeding to do justice in a case where under
the law the court could not compound a case and stop it.
Again, every High C o u r t is under a duty to exercise continuous
superintendence over courts of judicial magistrates subordinate to it to
ensure that there is an expeditious and proper disposal of cases.

Suggested Readings
(1) B. Malik, Criminal Trials, 1975.
(2) D.C. Pande and W. Bagga, Abridged Trial Procedure in Indian Law, I.L.I.
publication, 1973.
(3) D.V. Chitaley and S. Appu Rao, The Code of'Caminal Procedure, 1973 (AIR
Commentaries), 4 vols., 7 th ed., 1974.
(4) Ejaz Ahmed, Criminal Practice, Procedures and Pleadings, 2 nd ed., 1976.
(5) Law Commission of India, Forty-first Report on the Code of Criminal
Procedure 1898, 2 vols., 1969.
(6) Law Commission of India, Thirty-seventh Report on the Code of Criminal
Procedure 1898, Sections 1-176, (1967).
(7) R. V. Kelkar, Outlines of Criminal Procedure, 1977, Criminal Procedure
(2003).
(8) S.C. Sarkar, The Law of Criminal Procedure, 4 th ed. by P.C. Sarkar and K.C.
Ray, 1974.
(9) The Code of Criminal Procedure, 1973.

15. (2003) 4 SCC 675.