I.

Introduction

● Procedural law should:

○ Be consistent
○ PNJ
○ Accommodate certain vulnerable classes of people
● A. 21 is both substantive and procedural
● Criminal Procedure:
○ Filing of FIR - Investigation, collection of evidence and witness statements -
Arrest - Filing of chargesheet - Inquiry - Trial - Post trial
● Right against Double Jeopardy - Nobody can be tried for the same offence twice or
for a different offence on the same facts which could have been tried earlier.
● Procedure: General, Fair Trial, Presumption of innocence
● Cognisable offence: can arrest without warrant
● Bailable offence: Right to be released on bail, court has no discretionary power to
refuse bail
● Non bailable offence: Bail is discretionary power of court
● Compoundable offence: Parties can settle the matter
● CrPC:
○ Procedure needed to implement IPC
○ Mechanism to enforce criminal law
○ Complementary to substantive law
○ Explains the manner of arrest, search, seizure, investigation etc.
○ Regulatory
○ CrPC is largely procedural but contains some substantive provisions eg.
maintenance, public nuisance, bonds.
● S. 5 CrPC: Special procedural law > general procedural law
● Who administers the criminal justice system?
○ Police
○ Court - public prosecutor, judge, defence lawyers
○ Prisons
● Trial will get postponed if no defense lawyer or if the Bar refuses to defend them. So
representation of the defense is very important. Definitely need a defence lawyer for
the Sessions Court.
● The simpler the offence, less severe the punishment, less stringent the procedure and
vice versa.
● How does the police follow CrPC:
○ Courts have said that investigation is the most important duty of the police
○ Filing of FIR, chargesheet
○ Collection of evidence
○ Prevention of crime and timely response + preventive detention

● Rowdy Sheeters
○ India doesn't have a formal (legal) criminal registration system. Currently,
there is only a list of sexual offenders - includes registration and maintenance
of database
○ But now Puttaswamy could place some bars on permanently recording names
and profiling

● Quasi Judicial bodies: Executive Magistrate, Superintendent of Police, Revenue

officers, Commissioner of Police
● In case arrest is illegal, it does not affect the investigation parallelly. Remedies
available are habeas corpus and departmental action
● Amendments in 2005 (plea bargaining), 2009, 2010, 2013 (sexual offences), 2019
● Aims of CrPC
○ Safeguarding the interests of the accused from the violation of human rights
○ Discretionary power of investigation
○ Third dimension: rights of victims
○ Ignored: concerns of witnesses
● Irregularities can be of two kinds:
○ Vitiate proceedings (S. 461)
○ Do not vitiate proceedings (S. 460, 462)
● Chapter 35 (very important for the exam)
○ S. 460 - jurisdiction
 ○ S. 461 - rank-based jurisdiction
○ S. 462 - territorial jurisdiction
○ Must raise jurisdictional issue at the earliest else it amounts to a waiver
● Vikas Dubey Encounter Case
○ No remand order (legal approval of detention from Magistrate) had been
issued for Vikas Dubey. A. 21 requires life and liberty must only be taken
away only in accordance with procedure established by law.
○ In this case, it doesn't seem to be self-defense either. S. 46 CrPC - self-
defense if the accused resists arrest.
○ PUCL v. State of Maharashtra - in case of encounter killings there must be an
enquiry, must automatically file a report and a judicial magistrate should look
into it

II. Rights in the Criminal Justice System

● A. 21 Right to Life
○ Can only be taken away by authority of law
○ Kharak Singh v. State of UP - Domiciliary visits to a suspect at night were
violative of the common law right to privacy
○ Right to liberty includes no unnecessary arrest or restraint
○ Right to Privacy:
■ Right to be left alone
■ Right to be forgotten
■ Right against surveillance
■ Right against illegal search and seizure
● Right to Fair Trial
○ Hussainara Khatoon v. Home Secretary: Speedy trial
○ Fairness in hearing, opportunity of being heard, right to defence counsel
(defence counsel being present during examination of witnesses)
○ Right to other legal services
● A. 20 and 22 safeguards
● Aspects of Punishment
○ Proportionality
 ○ Nature and quantum of punishment
○ Procedure, mode of execution
● Victims’ Rights
○ Right to rehabilitation
○ Compensation: Courts have said that accused should pay, deduct it from the
fine the accused has to pay to compensate the victim. However, the fine
amount is very meagre. Further, where the accused can’t pay the fine he is
given a longer sentence in which case no compensation for the victim. Courts
then said the amount should be taken from prison earnings however that is
also meagre and would affect the convicts. After the 2009 Amendment, states
have victim compensation schemes. Currently, they are mostly compensated
from the Legal Services Authority Office
○ Fair and speedy trial
○ Confidentiality of identity

III. Application of CrPC

● S. 1 Scope of CrPC
○ S. 1 (2) - includes the whole country, even J&K now
○ Provides the machinery for the punishment of offenders under substantive
criminal law
○ Extends to investigation, inquiry, trial of any offence under the IPC/any other
law

● Investigation
○ By a police officer or by any other person authorised by a magistrate.
Extracting information from witnesses, scientific evidence, medical reports
etc.[Maha Singh v. State]
○ Arrest - Protect the victim, prevent obstacles to investigation. Arrest is a part
of investigation since it is needed to question them and imprison them after
conviction. . [Baldev Singh]
● Inquiry
 ○ Conducted by a magistrate for ascertaining and clarifying facts. After going
through documents and preliminary evidence, can frame a charge listing all
the allegations against the accused or discharge him. This is a part of inquiry
which is the first step of trial.
○ Trial starts on the basis of this. In some cases Magistrate can’t hold the trial,
they can finish the inquiry and forward the report eg. inquest report, especially
for custodial violence.
● Search and Seizure
1. Search warrant/writeup stating why they don’t have a warrant
2. For some laws, only certain ranks of police officer can conduct
3. Must be conducted in the presence of an independent witness
● Kundla Bojireddy & Ors. v. State of AP - State government had issued a notification
and introduced a new Code but retained the old Code in some areas. Trial was
conducted as per new Code but old Code should have been applied. Conviction and
sentence was quashed because the entire procedure applied was wrong. Since trial
was quashed fully, new proceedings wouldn’t vitiate double jeopardy.
● For double jeopardy to apply - previous proceedings should have been tried in a court
with competent jurisdiction. Not applicable at the stage on inquiry, investigation etc.
● S. 5
○ For offences under special laws, special procedure will apply. Usually for IPC
offences, CrPC applies.
● S. 2 (h) Investigation
○ Evidence should be collected by a police officer with power to investigate or
person authorised by a magistrate [Delhi Administration v. Ram Singh]
● Investigation v. Inquiry

INVESTIGATION INQUIRY

1. To collect information for prosecution 1. To determine the truth/falsity of certain

facts

2. First stage of a case 2. Second stage of a case

3. Conducted by police officer/person 3. Conducted by magistrate

authorised by magistrate
● S. 2 (i) Judicial Proceeding
○ Any proceeding in which evidence is legally taken on oath.
○ Only courts or quasi judicial bodies can take. Police cannot - violates the right
against self-incrimination
○ Statements recorded by the police are of no real use. Police can record
statements for investigation but cant directly use it as evidence in court, can
still build their case around it. This is to prevent custodial violence.
○ Exceptions: corporate fraud bodies can administer oath, in some cases railway
police can record witness statements.
○ Any administrative body that can administer an oath will be considered for the
purpose of judicial proceedings under S. 2(i). Eg. revenue courts, SHARIC,
tehsildar etc.
○ Inquiry comes under S. 2(i) but not investigation.

IV. Bail

● Can’t detain someone beyond 24 hours without producing them before the magistrate.
● For non-cognisable offences a warrant is always necessary. The offence is too simple
to arrest them without a warrant.
● House arrest is not recognised under the CrPC currently, could change with state rules
although not for serious offences
● S. 2 (a) Bailable offence
○ Bail is a right not a matter of discretion.
○ Warrant can indicate if it is bailable or non-bailable
○ An undertrial gives a bond of money/personal guarantee in order to not be in
custody until the trial is over.
○ Subject to some conditions: don’t leave town, cooperate with the investigation,
come to the police station whenever called. HC has inherent power to cancel
bail if conduct of accused post-release is prejudicial to a fair trial.
○ Talab Haji Hussain v. Madhukar Purushottam - HC has the power to cancel
bail. Power should be used sparingly, carefully and with caution.
○ If a person can’t pay the bail then the judiciary takes notice, and may shift
them to judicial custody.
 ○ Those listed under 1st schedule for IPC + made bailable by any other law in
force for the time being
● S. 436
○ In which cases bail is to be taken
○ Rasiklal v. Kishore Khanchand Wadhwani - Police officer/court officer before
whom the accused asks for bail shall release him on terms that appear to them
to be releasable.
○ They may discharge him upon execution of a bond rather than taking bail
money from him.
○ S. 436 does not create a power of discretion in the granting of bail, only a
choice between simple recognition of accused or demanding surety for
security. Reasonable conditions can be imposed.
● Discharge v. Bail
○ If a complaint against the accused is genuine, charges have been framed and
the trial commenced, bail would be a conditional release.
○ If the person is found to be unconnected to the case, grant of unconditional
discharge.
● Bail v. Bond
○ Bail is the condition on which an accused is released.
○ One of these conditions could be the signing of a bond which stipulates
payment of money, compliance etc.
○ They are both part of the same process
○ Personal or surety (undertaken by someone else on accused’s behalf)

V. Terminology

● Chargesheet
○ Investigation starts with FIR
○ Police prepares a report at the end of the investigation in relation to
cognisable offences called chargesheet/challan/investigation report
● Charge
○ List of offences laid down by the court
 ○ Prepared by the magistrate before the trial, can also happen at the stage of
inquiry. also. Sometimes the bench clerk prepares the charge, this may affect
the case without inquiry.
○ For sessions trial, hearing before charge is mandatory
○ Next step in the case after the filing of the chargesheet
● FIR
○ Police should describe the section. They may mention the wrong section or
make an omission, not too prejudicial to the case.
● Types of Trials
○ There are 4 kinds based on the nature of the offence:
1. Summary Trial
a. No charge needed, simple case, brief process, 5-10 days trial, very
simple procedure, no need for personal presence of accused in the trial
eg. maintenance cases
2. Summons Trial
a. Issue a statement of accusation, no charge needed, punishment below
2yrs
b. Issuance of summons, when summons fails issuance of warrant
3. Warrant Trial
a. Charge is mandatory, punishment more than 2yrs
4. Sessions Trial
a. Trial before session court, charge is mandatory, very serious offences
5. Warrant Trial
a. Start by using a warrant itself
b. But for government officer, reputed persons, high ranking
professionals etc. maybe only summons issued
○ Why is classification of trials important?
■ To check if a charge is required formally
■ To check what is the process to ensure appearance of people
■ To check what the trial procedure itself is

● Sessions Court
○ Procedure is very stringent.
 ○ Need public prosecutor to open the case (S. 226)
○ Inquiry + Discharge (S. 227)
○ Framing Charges (S. 228)
○ What do you plead (S. 229)
● If a warrant also fails, the magistrate can issue orders to attach property of the
accused. Then declare the accused as a proclaimed offender and try to get them in
court. Eg. Vijay Mallya was declared a proclaimed offender since he avoided
execution of the warrant.
● Who can arrest?
○ Police
○ Magistrate
○ Civil persons - in case of proclaimed offender, cognisable offence.

● 2009 Amendments to CrPC

○ Where imprisonment upto 7 years - no automatic arrest. ‘Notice of
appearance’ is issued by the police.
○ Where imprisoned for more than 7 years: automatic arrest by police.
○ Arrest warrant issued only by the court, having an ‘arrest memo’ is better for
documentation - Arrest memos under S.41B.
● Cognisable v. Non-cognisable Offences

COGNISABLE OFFENCE NON-COGNISABLE OFFENCE

Grave Less serious

Arrest without warrant No arrest without warrant

Police commences investigation on their Investigation only after magistrate issues

own order/commits for trial

Register an FIR with police Lodge a complaint with magistrate

● Cognisable offence
○ In case of cognisable offences, police have the power to arrest and a duty to
investigate. Provided in schedule 1 of CrPC, they don't need a warrant.
 ○ So serious that all procedures should happen - investigation, inquiry and
charge. Police can decide the question of search and seizure. Investigation
officer is empowered and regulated through law.
○ Automatic arrest happens esp. In cases where punishment is more than 7 years
○ If punishment is less than 7 years, only arrest if accused runs away or
obstructs investigation as per the 2009-10 Amendments. Police can instead
issue ‘notice of appearance’ asking accused to appear for interrogation
○ Can approach the magistrate for cognisable offences if the police refused to
investigate or register the FIR. Can lodge a complaint with the magistrate.
○ Any cognizable case where you have all the evidence and you don't want to
waste time you can directly approach the magistrate. Still, the public
prosecutor will be the prosecuting lawyer. If the court feels that the evidence is
not enough, the magistrate will ask the police to conduct further investigation.
○ In some cases, you may ask the magistrate to allow your own pleader, may be
allowed.
● Committed Proceedings
○ The chief judicial magistrate will look at the cases which come to him,
identify the prima facie offence and allot it to different courts accordingly eg.
murder/rape cases only to sessions court.
○ There can be 3-4 magistrates in a city with the power of allotting cases. These
are all pre-trial procedures.
○ After allocation, each court then frames the charge.
○ Some criminal cases can be private eg. bigamy, defamation etc. Additionally,
if a party goes to court with their own evidence, they initiate a private
complaint. A v. B type cases - there is no state involvement.
● S. 209 Magistrate to commit cases
○ FIR/Magistrate order - investigation - charge sheet - committal proceedings
(S.209) - Trial court
○ Private complaint (S. 200-203) - take cognisance, judicial notice (S. 190) [if
not taken cognisance, file an objection/appeal] - committal proceedings (S.
209) - chargesheet - trial OR discharge after committal proceedings
○ To show that the magistrate has taken cognisance, he will issue some kind of a
notice eg. summons etc.
 ○ S. 193
■ Has a safeguard. Court of Sessions (after allocation of case) can’t take
cognisance until magistrate has finished the committal proceedings. So
if a wrong court (eg. lacking jurisdiction) takes cognisance, defence
can argue lack of jurisdiction and get it quashed.
■ If incorrect territorial jurisdiction then may not be quashed but if
incorrect competency based jurisdiction, it would be invalid from the
beginning. So depending on who takes cognisance either proceed with
enquiry or commit it to a different court.

● Structure of Criminal Cases

JUDGE MAX. PUNISHMENT THEY CAN

AWARD

SC Death

HC Death

Session/Additional Sessions Court Death

Assistant Sessions 10 years

Chief Judicial/Metropolitan Magistrate 7 years

Judicial Magistrate of 1st Class 3 years

Judicial Magistrate of 2nd Class 1 year

● The Chief Judicial or Metropolitan magistrate allots cases to himself and lower courts
through committal orders. Especially when allocating cases to higher courts,
committal orders must be issued by the chief judicial magistrate.
● S. 190 - Magistrate takes cognisance
● S. 193 - commits to sessions court. Court can then charge/discharge after enquiry
 VI. FIR

● Criminal procedure starts with investigation - registration of FIR/lodging of complaint

with magistrate
● FIR has immense evidentiary value, important because:
○ Court looks at when the FIR was filed, how etc.
○ Prosecution can use it to corroborate evidence
○ Defence can show contradictions between FIR and witness statements
● Who gives information for FIR?
○ Victim or informant

● S. 39
○ Some offences are so serious that you have an obligation to inform the police
under S. 39 CrPC or other acts like POCSO
○ Include offences against state, against public tranquility, against life,
kidnapping for ransom, dacoity etc. Refer to the section for the complete list.
○ The person must report it to the nearest magistrate/police officer; in the
absence of any reasonable excuse where the person shall have the burden of
proving such excuse.
○ It is a punishable offence if you don’t S. 39 CrPC r/w S. 176 IPC
● S. 40
○ Duty of a police officer employed in connection with the affairs of the village
to make a certain report.
○ Since police/judicial infrastructure is very poor in villages, government
officers in villages have a duty to report it to the police or magistrate. Also a
duty of the villagers.
○ The offences listed under this section are related to property, theft, non-
bailable offence, sudden/unnatural death, missing persons etc. Check section
for more.
○ Khap panchayats are also illegal, they should be reported - at least the serious
crimes.
● If A knows about an offence like conspiracy and can impute mens rea and actus reus
to facilitate the crime, he could be punished for abetment for not reporting.
● S, 39 and 40 impose an obligation to inform but one can be an informant even without
having such legal obligation.

● FIR (First Information Report)

○ First step of investigation. Not defined anywhere in the CrPC
○ It is the information relating to a cognisable offence that reaches the officer in-
charge of the police station first in that point of time.
○ FIRs cannot be altered or changed subsequently. If a second person comes
later and provides further information, it can’t be added to the FIR. Must be
recorded as a separate witness statement under S. 161/162 - Babu Bhai case
○ Minor changes in the FIR are allowed before full fledged investigation
commences but the substantive parts cannot be changed especially after a
prolonged lapse of time. Would give the impression of manipulation.
○ Sameness Test - if its the same incident or part of the same transaction, the
second version of the FIR can be quashed. But if different incident or not a
part of the same transaction, second FIR is valid. The second FIR would be
maintainable even if the accused makes a counterclaim.
○ If A and B were fighting and both file FIRs against each other. Even though
both parties injured each other in the same transaction, if it is amounting to
distinct offences they can be registered separately. Thus, distinct offences in
the same transaction can still be allowed as two FIRs, won’t fall under the
sameness test. Could attract the problem of double jeopardy - subject to
investigation, arrest, interrogation more than once in the case of conflicting
FIRs but same transaction. Refer to ‘Joinder of charges’ below to see how it
would be resolved.
○ Sameness test only applies if facts are very similar but that won’t be the case
for distinct offences even if part of the same transaction.
○ In a case with unclear or cryptic information, preliminary enquiry being
carried out and then FIR being filed is permissible as long as nothing is done
which would form a part of the investigation eg. talking to witnesses
○ Non Cognisable offence doesn't need to be registered as an FIR, must be
registered as an NCR and then directly taken up by the magistrate.
Joinder of Charges
● At the stage of trial, both the charges will be clubbed (not the FIRs but charges
themselves). It is possible that both the opposing parties could get convicted and the
prosecution-defense distortion won't hold even if they caused chargesheet to be filed
against each other.

● What is an FIR?
○ Jagdish v. State of MP: 5 people murdered. 1 person’s wife was being dragged
by one of the 8 accused because she was a part of their tribe. Woman
assaulted, cried for help, her husband and 4 others came to help but got killed
in the fight. Woman tells Shyamlal and asks him to convey it to the reserve
inspector. The RI in turn telephones one police station and sends wireless
information to another police station. Then the police went and notes down a
statement of the woman.
○ Here there were 4 instances of ‘FIR’: 1. call made by S to the RI, 2. RI’s call
to the police station, 3. RI’s wireless message to the 2nd police station and 4.
recording of woman’s statement by town inspector.
○ Held that: 1. invalid because RI not competent to record FIR as per rank. With
regards 2. And 3., if a message was conveyed to a senior police officer and
asked them to investigate then valid FIR but if it was merely an attempt
to notify or ask them to look into it then not an FIR. In the case. RI only
informed that something happened and didn't give details. Therefore, 4. Was
the only time when full detailed info required in an FIR was recorded.

● Why does it matter when the FIR was registered?

○ Possibility of tampering
○ Needed to corroborate prosecution’s case
○ Sooner the legal process starts, sooner the victim can be helped and the
accused tracked down

S. 154
● State of Bombay v. Rusy Mistry - FIR is not defined in the Code but is a report
recorded under S. 154 CrPC.
● FIR can be given orally or in writing. Now, emails can be added as annexures.
● Can FIR be lodged by an accused person?
○ Yes, can be recorded, not barred but must obtain judicial confession for it to
not be hit by S. 162. Aghnoo Nagesia v. State of Bihar
○ Better to record some independent evidence in such cases
● Whenever an FIR is filed, get it signed by the person registering it. Each state has its
own format for registering an FIR.
● Police are generally reluctant to file an FIR cuz:
○ Increasing cases reflects poorly
○ Presence of influential local powers
○ Do not want to undertake responsibility, viewed as a burden
● It is the duty of the police officer to register it - section states “shall register”. State of
Haryana v. Bhajan Lal: Police have no option but to register an FIR if they receive
information of a cognizable offence.
● Territorial jurisdiction
○ even if lacking, register the FIR first. General rule is that it should be handed
over to the police station with territorial jurisdiction so it can still be lodged
elsewhere. Since different regions can have different procedures, adherence to
the same in order to respect territorial jurisdiction + convenience sake + non-
encroachment
○ Zero FIR - title of an FIR registered by a police station without jurisdiction
○ State of AP v. Punati Ramube - Refusal to register FIR amounts to dereliction
of duty. Police should record the information and forward it to the concerned
police station.
● FIRs are prepared by the SI (known as ‘writers’)
● 2013 and 2018 Amendments to S. 154 - for some specific cases against women, the
FIR must be recorded by a woman police officer.
● In case the victim is disabled: police should go to their residence or a place
convenient for the victim in the presence of an interpreter or special educator.
● Should ideally video record the information and get it recorded by a judicial
magistrate, in case the witness turns hostile or isn’t able to appear later.
Safeguards for Accused’ Statement
● V important for the purpose of A. 20 (3)
● S. 164 allowed accused confessional + witness statements to be recorded by a
magistrate as a discretionary power of the police. However, pursuant to the
amendment of S. 154, taking the person to the magistrate is some cases is
compulsory.

S. 162
● Witness statements barred from use as evidence because possibility of custodial
torture

● Types of Reports filed by the police

○ A report - that the first information received is true, confirming FIR
○ B report - allegation made out against a person is not true, clean chit to
accused
○ C report - offence can be made out but accused is missing or dead, unable to
prosecute accused
● Thus, even if the police mistakenly registered an FIR for a civil case, they may file a
B report to dismiss it but whenever an FIR is filed, they HAVE to file a report.
● Admissibility of FIR
○ An FIR is admissible under S. 157, is not hit by S. 162 which prevents
statement made ‘in the course of investigation’ to be used as evidence

● Refusal by Police to register FIR:

○ S. 36 CrPC - officers superior in rank to SI have the same power as lower rank
officers so they can record the FIR
○ S. 200 - Go to the magistrate, he may directly accept the complaint or order
investigation or order police to register

● Contents of FIR:
○ Names of witnesses (if names not present in the FIR, presumption is that they
were procured later)
○ All the material facts as available at that time
 ○ Names of accused persons as available at that time

S. 154 (2)
● One free copy given to informant to check the information and have a later copy to
contest in case police fabricate the FIR later
● Insist to give a carbon copy and not just a printout

S. 154 (3) r/w S. 36

● Higher ups can include SP, he can investigate or direct the junior police officers

● Can a telephonic message be the basis of an FIR?

○ Sukharam v. State of MH: As long as its clear, accurate and based on a
cognisable offence it can be recorded. If the person doesn't want to reveal
identity then IO himself can sign the FIR.
● Is there a need for an oath to be administered?
○ No, don’t have authority to do so. FIR should be read out and witnesses can
sign/ thumb impressions.
● Delay
○ may be condoned based on the nature of the case (dacoity, sexual offences
etc.). If it is unexplainable, casts a doubt on the prosecution's case - Ram Jag
v. State of UP
● How many copies of FIR to be made?
○ 4. One each with police, victim, magistrate and one attached to the
chargesheet.
○ Accused can make an application or any interested party can get a certified
copy from the court. It becomes a public document once it is with the court
unless the court declares it to be confidential. Making the document public
prevents fabrication and also keeps the magistrate updated.
○ If the accused is in custody, then his family member or lawyer has to apply to
the court for a copy. So when arresting, police has to inform them then itself
so that they can prepare for bail etc.
● If medical examination is required, needn’t wait for FIR to be lodged especially in
emergency cases.
● Is all first information FIR?
○ No, unless it is transmitted with the view of narrating the circumstance of
crime to start the investigation.
● Can a later version be an FIR?
○ No. Exception: possibility of two FIRs with independent allegations against
each other (Babubhai v. State of Gujarat)
○ All other information made orally or in writing after the commencement of
investigation into the cognisable offence disclosed from the facts of the FIR is
entered in the station house diary and is hit by S. 162
● Police can filter and decide which witnesses and which statements can be used during
trial. No obligation to present all eye witnesses in court. Whoever is annexed to the
charge sheet, they are final. However, nothing prevents the court from calling the
others to come and testify. The final written statements annexed to the chargesheet
fall under S. 161 but still hit by S. 162

● State of AP v. Punati Ramube:

○ Facts: 9 accused tried for rioting and murder. Sessions judge convicted 6 of
them. They appealed and were acquitted by the HC. State filed appeal against
first 3 who had been acquitted by the session’s judge but was dismissed by the
HC.
○ State appeal before the SC: acquittal of the first 3 by sessions judge (dismissed
by SC) and acquittal of the 6 by HC (in question).
○ Issue 1 Refusal to file FIR: held it is a dereliction of duty on the part of the
constable. Lack of territorial jurisdiction not an excuse, can register and then
forward it.
○ Issue 2: PW22 received some information from another officer wrt the
incident. Didn’t note it but instead went to the place and investigated. FIR
registered later during investigation. Therefor FIR hit by S. 162
○ Issue 3 Testimony of related witnesses: Even though it can usually be allowed,
doesn’t mean that related witness testimony is unreliable. But in this case, rest
of the investigation is tainted and no independent, corroborative evidence to
support witness statement here.
 POCSO

● S. 19: reporting of offences - any person who is aware of child sexual abuse has a
duty to report it. FIR shall be registered (even though this word is not used in the Act
● If a child gives info, record it in a simple language. Have a translator or interpreter to
explain to the child.
● If the victim is a child in need of care and protection they shall admit the child to
hospital/shelter homes. Act as protection officers.
● Special Juvenile Police Units always headed by a woman.
● Protection homes specially for children, don’t place them in homes where juveniles
are placed. Could be government or NGOs as recognised by a notified list.
● Police have power to take children away from custody as well. Police must report
matter to child welfare committee.
● S. 20 obligation of media, studio and photographic facilities to report cases. Even
hotels, lodges, hospitals do.
● S, 21 - if not reported, would be punished S. 39, 40 CrPC. Not applicable to children
● S. 22 punishment for filing false cases.

Object of filing FIR

● To set criminal law in motion

● To Obtain early info of an illegal activity
● Foundation of the case
● Legal importance for both prosecution and defense

Delay in filing FIR

● Ram Jog v. State of UP - “Whether the delay is so long as to throw a cloud of

suspicion on deeds of prosecution?”
● Harpal Singh v. State of HP - delay in rape cases acceptable because it is a question of
family honour
● State of Punjab v. Gurmit Singhi - delay in lodging FIR in rape cases because of
reluctance of prosecutrix and her family
● State of HP v. Gianchand - can't diacard prosecution case only on the basis of delay
in registering FIR. If prosecution can satisfactorily explain it then its fine.

Evidentiary Value of FIR

● Corroborate evidence under S. 157 IEA

● Other side will use it for contradiction
● Even if my own witness turns hostile, I can use their previous statement to disregard
their present statement and declare them hostile.

● Prosecution Witness:
○ Examination in chief by PP - corroboration
○ Cross by defence counsel (DC) - contradiction
○ With court’s permission, reexamination by PP
● Defence Witness - same format but interchange PP and DC
● Under S. 157 any statement not hit by S. 162 can be used eg. FIR, judicial confession
● S. 145 IEA
○ A witness may be cross examined as to previous statements made by him in
writing, can be contradicted also
● S. 157 IEA
○ Former statements of witness may be proved to corroborate later testimony as
to the same facts.
● S. 145 - cross exam to contradict, S. 157 - chief exam to corroborate
● Omission of important facts which alter the probabilities are relevant under S. 11 IEA
● Can the FIR given by the accused be used as evidence against him?
○ Yes, if non-confessional FIR - S. 21 IEA
○ No, if confessional - S. 25 IEA

Investigation

S. 155 Non Cognisable Offence

 ● Subodh Singh v. State in Calcutta HC: S. 155(2) is a material procedural rule. Leads
to vitiation, police cannot start investigation without an order of magistrate for NC
offense
● HN Rishbud v. State of Delhi in the SC- if such a breach is brought during trial, pass
order on reinvestigation. But if not noticed and trial is conducted, the defect/illegality
will not vitiate trial if prejudice is not caused to the accused.

S. 156

● Police officer’s power to investigate cognizable case, don’t need magistrate order.
Territorial jurisdiction is important and you understand that with reference to which
court has jurisdiction to try under Chapter 13.
● Exception to territorial jurisdiction under Chapter 13:
○ Continuing offence spread over many jurisdictions eg. kidnapped then moved
to multiple places then confined elsewhere. - all the police stations will have
jurisdiction
● By mistake if investigated in wrong jurisdiction in good faith, shouldn’t quash the
entire investigation.
● Remedy in case of mala fide exercise of police power to investigate:
○ No remedy under CrPC during the investigation SN Sharma v. Bipin Kumar
○ Remedy is to invoke writ jurisdiction
● S. 156(2)
○ Facilitate investigation without unnecessary hurdle
○ If magistrate gets to know about the impropriety, he has no power to stop ir or
order for a magistrate enquiry. Can be considered later at the stage of trial.
● S. 156 (3)
○ Magistrate can order for investigation whether it is for a C or NC offense.
Then the police can do it.

Procedure for Investigation

Cues Notes
When inv. starts? S.200 – Complaint to magistrate who may give an order to investigate
For non-cognizable S.155(2) police can’t investigate NC without Mag. permission
offence – S.155 Subodh Singh v State; HN Rishbud v State of Delhi – investigation
without order of Mag is a breach, but must be brought in initial stage
unless there’s prejudice to accused

For cognizable Police officer can investigate without Mag order – but territorial
jurisdiction is impt – exceptions in Ch.13
offence – S.156
(3) – Mag can order investigation for Cog / Non-cog.
Mag can’t stop it or order inquiry (S.156(2) – investigation w/o
Improper
hurdles) – can look at this aspect later
investigation
No remedy under CrPC during investigation, can invoke writ
Remedy
jurisdiction
SN Sharma v Bipin Kumar – during investigation no power of victim
Cognizance of
S.190(1) – Mag can take cognizance on:
offences by Mag
a. receiving a complaint (S.200)
b. police report (Ss. 154-157)
c. information from other sources or own cognizance by Mag

S.156(2) – Mag can order for more investigation before taking

Allocation – S.192
cognizance
Mag allocates to requisite courts
S.202 – Can postpone trial to decide if evidence is enough to
prosecute – can conduct enquiry or order inv. – can be done after
Procedure for cognizance/allocation
investigation – S.157

Police sends a brief report on complaint to CJM – Keeps Mag in loop,

before full-fledged inv. – Territorial requirements must also be
satisfied at this stage
Only SI or above are empowered to investigate
Provisos:
All prelim reports (S.154, 155, 156) must go to Mag – same for
arrest/seizure memo when starting inv.
(a) Info relating to accused, non serious offence, no need to
Non-compliance investigate on spot
(b) Police feel there’s no sufficient ground for inv, drop it

This must be mentioned in report to Mag and informant

Mahabir Singh v Delhi Admin – non-compliance with S.154/157 not a
Report how ground to throw away prosecution case, but Court can draw adverse
submitted – S.158 inference; if it prejudices the accused Court may not appreciate that
evidence
Inv/ Prelim inquiry –
S.159
Superior officer or special officer appointed by Govt or a
subordinated instructed by them submits report
Once report is submitted, Mag can direct an investigation / commit
What an investigation
the case for enquiry to requisite court
consists of:
Mag. orders for investigation – 155[Cog.], 156(3)[Before taking
cognizance], 159[Prevent police from dropping case], 200[after taking
cognizance]
HN Rishbud v S/o Delhi:
1. Proceeding to the spot
Power of police 2. Ascertaining facts and circumstances
officer to require 3. Discover and arrest of suspects
attendance of 4. Collection of evidence – examining persons, getting
witness – S.160
statements, search and seizure, opining whether case
should go for trial / filing a chargesheet

IO gives order in writing, call people before him – including

witnesses acquainted with facts and circumstances but not accused,
case must fall within his jurisdiction – Proviso, with some witnesses
do this at their residence itself
Examining witnesses
by police – S.161 Cannot call an accused – must call an accused by arresting under S.41
or issue letter of notice of appearance
Narayan Swami v Emperor – cases where police summons a witness
who later becomes an accused – fine as long as they weren’t accused
at the time
Use of force to Police has discretion to call them or examine them – witness has an
compel obligation to answer truthfully unless it is self-incriminatory – self-
 incriminatory statements also protected by S.162
Delay in examining If reduced to writing by police officer – they must be separate and
true records of each witness statement
State of MH v Atma Ram; State of AP v Venugopal – can’t use force
to compel witness to reveal info
Should be done without delay – delay throws doubt on prosecution
Art. 20(3) violation
Balakrishna v State of Orissa – unexplained delay, contradictory
statements – no evidentiary value
Ram Singh v State of MP – delay throws doubt on prosecution
Nandini Satpathy v PL Dani:
· S.161 includes accused (Pakala Narayana Swamy);
· Accused named in FIR can claim 20(3) protection for full
investigation plus trial
· 161(2) protection for self-incriminatory statements –
extends to any crime, not just crime in FIR – self-
incriminatory statement need not be a confession, it’s any
statement that shows some involvement
· Cannot use torture to extract info – compelling includes
using psychological means, atmospheric pressure, long
tiring interrogation, frequent threats of prosecution

Art.20(3) is a protection against self-incriminatory statements and a

right to silence
Can’t resist real evidence (hair/blood/medical exam) on 20(3) grounds
Unnatural death since this is not exclusively in your knowledge
report – Ss.174 to Kathi Kalu Oghad – confirms that testimony and witness statements
176 can’t be compelled. but real evidence can be
Stuff on narco, DNA, polygraph – refer to evidence notes
Suspicion, but not enough to file an FIR – prelim investigation, talk to
witnesses (no evidentiary value to these statements, hit by 162) – only
summons power no arrest power
S.162 – Bar on use of
statements to police If only an NDR/UDR is filed initially, it can later be converted
directly into an FIR (witness statements will be hit by 162)
Exceptions
This includes oral statements, statements reduced to writing, written
 statements, signs/gestures
Bar is only on use of statements as evidence, does not include record
of search by police or real evidence
Does not include statements made to third parties
Conditions
Does not include FIR, since that is a statement made before
investigation
Statement during investigation, to a police officer, about what you
know about the crime
Includes confessional statements to police officers
State of KA v Rajan – List of stolen articles given – considered part of
FIR, not written statement
State of Rajasthan v Bhawani – statement regarding murder site plan
– barred by 162 – what the police officer saw and noted on his own is
admissible (such a distinction is usually not possible)
Jit Singh v State of Punjab – site plan entirely based on witness stm –
hit by 162
S.145, IEA - Cross George v S/o KA – statement in inquest report – admissible to the
extent that it relates to what IO saw or found, but hit by 162 if based
on convo with others
Witness can be questioned on 162 statement to show contradictions –
must tell witness about the parts of the statement you are going to use
for this purpose – no need to ask about full statement, only about
contradictory parts

S. 164: Recording of confessions and statements:

Recording of confessions (of the accused) and statements (accused and witnesses) by
Metropolitan Magistrate or Judicial Magistrate.

Confession: Statement that admits the offence or substantially all the facts which constitute
the offence (Pakala Narayana Swamy v Emperor)

A gravely incriminating fact/statement alone isn’t enough to constitute a confession.

Confessions made to police officers are not admissible – S. 162CrPC and S. 25 IEA
Elements of a S.164 Statement:

· Animus Confidetendi: ‘Intention to confess’ – shouldn’t have been heard over a

wiretap or anything. People should knowingly confess.
· Actus reus: Act of the confession itself

Difference between S.164 statement and pleading guilty:

- S.164 statement is made during the investigation of the evidence and is only one
piece of evidence in the whole case.
- Pleading guilty is at the start of the trial and can turn the whole case around –
could directly lead to a conviction (S.229 for summons cases, 241 for warrant
cases, 246(3) for cases instituted otherwise than on police report).

Importance of a S.164 statement:

- Highly reliable – made to the Magistrate

- Deliberate and voluntary confessions of guilty, if clearly proved, are one of the
most effective proofs in law.

Conditions of making a S.164 statement:

- Should be freely and voluntarily made

- If it is made with the hope/promise of an advantage, reward, immunity, force, fear
or threats, it is not valid.
Exception: When the police asks someone to turn as an approver, then confession in
exchange of immunity is valid [S. 306 – Tender of pardon to accomplice, based on
full and true disclosure of the whole circumstances: Only applicable for cases where
the punishment is more than 7 years (serious case)].
- Must be made with the full knowledge of the nature and consequences of the
confession.
- Must not be made by a police officer on whom power of a Magistrate has been
conferred.

Hem Raj Devilal v Ajmer: If the statement is made after the commencement of inquiry/trial, it
would not come under S.164.

Precautionary Rules in S.164 for confession – in the section and its provisos.
Note: 164(2), (3) and (4) refer to only confessions, so applicable only to accused. 164(5)
refers only to witness statements.

Why are witness statements recorded under this section?

- To prevent them from turning hostile

- To minimize the chances of them changing their statement at the trial
- Since oath is administered for a 164 statement, moral obligation not to lie
- Fear of perjury if witness has lied

Witnesses and the accused are bound by S.164 statements and their signature will be taken on
such statements (unlike in S.162 statements).

Procedure for recording a S. 164 statement:

- 164(2): Confession – Mag explains to the accused that he is not bound to make a
confessional statement and if he makes it, it may be used as evidence against him.
Magistrate shall not record any confession, until he questions the person and has
reason to believe that it was voluntary.

Additional safeguards:

Kuthu Goala v S/o Assam: Warnings set forth in S.164 are just illustrative and not exhaustive.

- Magistrate should inform the accused that he is an independent power and not
related to the police, to make him feel less pressurized.
- Object of the section is to find out whether confession is voluntary or not (Judges
Rules).

Hemachandra Nayak v S/o Assam: A confession under S.164 becomes voluntary when it
is made by the accused out of repentance after due caution, with reasonable time for
reflection, in order to remove the effects of any threat, torture by the arresting agency and
when it precludes the possibility of tutoring.

S.164(3): If the accused says he doesn’t want to make the confession – Magistrate shouldnt
authorize detention in police custody – they must be kept in judicial custody (prison).

S.164(4) – Recording confessions as laid down in S. 281

S. 164(5) – Witness statement, however Mag thinks is best – oath is still important and must
be administered
164(5A) – Brought in by 2013 Amendment – statement of victim to be recorded as soon as
commission of offence is brought to the notice of the police.

S.164(6) – Mag who records the confessions/statements shall forward it to the Mag who is
going to inquire the case.

S.164(1) – Discretionary power of Magistrate to record ‘May record’ – if they refuse to

record, parties can go to Sessions Court and get an order to record.

Shankaria v S/o Rajasthan: Twin tests to evaluate a confession:

- Whether it was voluntary

- Whether it is true and trustworthy

If the first test fails, no need to go to the second.

Statements that are not confession can be used to corroborate or contradict testimony under
S.157 CrPC and S.145 IEA.

Validity of voluntary confessions:

Bharat v S/o UP: Confessions can be acted upon if the court is satisfied that it is voluntary
and true. There should be no threat, inducement or promise (Would be irrelevant under S. 24
IEA). Truth is judged in the context of the entire prosecution case and the confession should
fit in the proved facts and not run counter to them. If all the requirements are satisfied, it is
the most potent piece of evidence against the maker.

Retracted Confessions:

Pyare Lal Bhargava v S/o Rajasthan: Court cannot base conviction solely on a retracted
confession – it needs corroboration. A retracted confession may still form the basis of a legal
conviction if the Court is sure it was made truthfully and voluntarily.

Haroon Haji Abdullah v S/o Maharashtra: A retracted confession must be looked at with
greater concern, unless reasons given for having it made in the first instance (not for
retraction as erroneously stated in some cases) are false on the face of it. A retracted
confession is a weak link against the maker and more so against a co-accused.

Salim Akhtar v S/o WB: Court may look at reason for confession as well as retraction. Must
weigh the two to determine which one to rely on. Relying on retracted confessions requires
the general assurance that the retraction was an afterthought and that the earlier statement was
true, but for a true confession, just check if it was voluntary and can be relied on.

Vinod Solanki v UoI: Court must bear in mind that at the time of retraction, the nature
thereof, the manner of retraction etc. Requirement is to show threat, coercion to show the first
statement wasn’t voluntary – court can also ascertain these conditions from its own
examination.

Witness Protection:

Swaran Singh v S/o Punjab: Witnesses get harassed a lot and the judgement recommends that
the HC should ensure that witnesses are paid the money for their commute to the court and
back. All levels of courts must be connected only to correctly record the status of
adjournments.

Malimath Committee: Witnesses should be treated with respect

Maria Monica Susairaj v S/o Maharashtra: Form of recording confession (format apparently
sent by ma’am)

Babubhai case: FIR is the first information report and all other statements are 162 statements.

Search and Seizure:

S.165 CrPC: Search by police officer

- Officer in charge or officer making an investigation

- Reasonable grounds to believe that anything necessary for the purpose of the
investigation into any offence which he is authorised to investigate – these reasons
must be recorded into writing
- Specify, as far as possible, the thing for to be searched
- Can only search places within the limits of the police station
- Such thing otherwise cannot be obtained without undue delay

S.165(3): As far as possible, IO should conduct the search or atleast be present and supervise
everything – to survive the cross-examination.
S.165(5): Search and seizure memo/Panchnama/Maahazar – a copy to be sent to Mag
empowered to take cognizance – Owner/Occupier may also get a copy by submitting an
application.

General Search procedure in S.100 CrPC.

S.100 CrPC: Persons in charge of closed place to allow search

- 100(1): Allow the officer or any other person executing the search warrant into the house.

- 100(3): Can search the person if there is reasonable suspicion of concealing an article about
his person.

S.165 r.w. 100: Search of place as well as person.

Need for independent witnesses from the locality for the search and seizure – 100(4).

S.100 is the norm. S.165 is the exception when it is too crucial to wait for a summons or
warrant – ought to be sparingly used.

S/o Punjab v. Balbir Singh: Whether there is reason to believe and whether the officer is
empowered to act in a bona fide manner will depend upon the facts and circumstances of the
case and will have a bearing on the appreciation of evidence.

If doubt is raised about the prosecution case and there is no other corroborative evidence,
then this evidence collected may not be relied upon.

The test is to determine whether prejudice was caused to the accused on account of the
procedural flaw.

S Narayanappa v Commission of IT, Bangalore: Reason to believe must be bonafide and

must be based on strong grounds.

Dr. Partap Singh v Director of Enforcement, FERA: Whether the grounds are adequate or not
will be decided by the court. If the search is wrongly done, then the accused can file a breach
of privacy case against the police [this is in line with Puttaswamy’s ruling].

Generally, the court doesn’t need to satisfy and determine if there was a reason to believe for
the admissibility of evidence. It only comes up if a case is filed for the breach of Privacy.
Illegal Search:

Sharda Singh v S/o UP: Compensation can be asked to the police for an illegal search. The
lack of time is not always a reasonable ground to conduct a search without a warrant. Subject
matter of the search is often the stronger reason.

Samresh Singh v State: Recording the reason for the search is mandatory.

(1915) 16 CRLJ 589: Delegation of power by the IO should only be if necessary and the
reasons for delegating must be recorded. For searching places outside your jurisdiction, you
must ask the other police to conduct that search.

Satya Gopal v Satrugan Behora: If the IO delegates it to A, a subordinate, A cannot further

delegate it to someone else. The rank of the delegatee should be of a Superintendent or above.

Sanchita Investments v S/o WB: Separate search memo should be recorded, not in the station
house diary or case diary. Doing otherwise is not valid because a copy would not be able to
be furnished by the accused.

In cases of illegal search, you can either file a breach of privacy case immediately or raise it
as a procedural ground for defence in trial.

S/o Rajasthan v Rahman: Not recording the reasons for search amounts to an illegal search.

Get the search and seizure report signed by the accused, witnesses and owner of the property
– send a copy to the Magistrate. There are separate rules for S&S in different acts and those
should also be kept in mind.

Selection of witnesses for search and seizure

Section 100 says the witnesses must be from the locality of the premise being searched.

Kultan Panicker v S/o Kerala: Selection of witnesses by the IO must be unprejudiced and
unrelated to the case. They must be from the locality of the search premises, for instilling
faith in the public.

Prem Chand v S/o Punjab: If there is no independent witness, it will cast doubt on the
prosecution case if the evidence seems shady. There will be greater court scrutiny in this
case.
S/o Maharashtra v PR Pathak: Search by customs officers on an isolated island, so they took
witnesses from another area – was justified, in the mind of the court.

Tej Bahadur Singh v S/o UP: Accused was an influential person, so no one from the locality
was ready to be a witness. Irregularity in such cases would not vitiate the proceedings in
court.

S/o MP v Paltan Mallah: Based on a confession, some articles were seized. The witnesses
were from another locality. The court said that there was a need to show prejudice to the
accused to discredit these witnesses.

S.100(8) – any person refusing to be a witness commits crime under S.187 IPC.

S. 181: Place of trial in case of certain offences: Read it to know which court would be the
place of trial for a given offence.

Search Premise outside the local limits of the police station

S. 166: When officer in charge of police station may require another to issue search warrant –
In cases where the search premise is within the local limits of another police station. The
officers at the other police station shall conduct the search as per S.165 and forwards the
seized materials to the former station.

S.166(3): Whenever there is reason to believe that the delay occasioned by requiring an
officer in charge of another police station to cause a search to be made under sub-section (1)
might result in evidence of the commission of an offence being concealed or destroyed, it
shall be lawful for an officer in charge of a police station or a police officer making any
investigation under this Chapter to search, or cause to be searched, any place in the limits of
another police station in accordance with the provisions of section 165, as if such place were
within the limits of his own police station.

166(4): The officer conducting the search under S. 166(3) shall send to the officer incharge of
the other police station a notice, a copy of the list under S.100 and send these records to the
Magistrate as well.

Naba Kumar Das v S/o WB: Error in the seizure memo, usage of local terms and local
language. The seized materials were not stored carefully. Small error in the description as
well. Court held that the entire process failed to inspire confidence.
For cyber evidence, get permission, intercept it and use forensic tools – record as
documentary evidence (S. 69, IT Act).

S. 166A: Letter of request to competent authority for investigation in a country or place

outside India.

To investigate and collect evidence in place outside India, the IO has to write a letter of
request/letter Rogatory to the Court.

Bofor’s case: Letter Rogatory is the process through which you require someone from
another country to give you evidence to aid investigation. Such requests depend on the
comity of courts towards each other.

If the court in a foreign jurisdiction records it – Considered a S.164 statement

Police records it – S.161 statement

Evidence recorded shall be considered usual documentary evidence.

For electronic evidence, S.65B IEA requires a certificate of fitness [Anvar v Basheer]. In
your letter rogatory, you must ask for the particular format of the certificate to be sent for any
computer outputs.

Section 166A is used in cases of freezing of Swiss Bank accounts, by writing a letter, etc.

· Letter should mention what punishment, official translations, what stage of

investigation you are in etc.

· In India, it is not necessary to bring the proceedings of the case to the notice of the
accused.

· The terms of the letter of request (Letter Rogatory) should be as per the
treaty/agreement/mou/arrangement - don’t use words like mahazarnama, etc.

· A minimum of 6 LR copies are to be prepared.

Channel of communication to obtain evidence under S.166A:

IO – Magistrate – National Central Board (CBI’s Interpol wing) – copies go to MEA, India
and Diplomatic agency of US – in US, to FBI – Local Court – collection of evidence.

Interpol notices come under S.41 CrPC (When police may arrest without warrant).

UOI v Mohan Lal - For the purpose of testing, guidelines have been provided under S. 52A of
NDPS act in which it is told where the seized material is stored and how samples for testing
are to be prepared.

S. 166B: Letter of request from a country or place outside India to a Court or an

authority for investigation in India.

Opposite of S.166A – collection of evidence in India on the basis of another country’s

request. Same procedure as 166A.

CBI v. Ram Narain - Can an offence committed by an indian outside India be

investigated/inquired/tried (so, both police and judicial authorities) by the local authorities?

Ans. YES. As for investigation, S.166B, and as for trial, S.188 CrPC (Offences committed
outside India), he (criminal outside of India, but Indian) may be dealt with (that is, tried =
trial) as if the offence was committed in India. But you need prior sanction of govt before
inquiring or trying (because it concerns international relations and extradition
agreements).

Narinder Singh Bogarh v. Punjab - Based on letter of request issued by govt of Canada
addressed to MHA, the SI, CBI, Chandigarh, filed an application before Court of Special
Judicial Magistrate, CBI, Punjab, purporting to be under S.166B of the CRPC seeking
directions to the appellant to make a statement and give blood samples for sending the same
to Canadian Authorities as desired by Canada.

The said Magistrate by his order dated 21 October 2000 rejecting the objection of the
appellant allowed the said appln of the CBI. The appellant moved to Addl Sessions Judge,
Patiala by way of revision that there should be voluntary will to provide blood/etc. But the
courts rejected this and ruled in CBI’s favor.
 Ultimately went to SC - SC held that earlier courts erroneously applied the law by invoking
S.166B, as the LR (letter rogatory) was limited/specific to what was mentioned in the letter -
in the letter it was mentioned that only if the person wanted, he could give blood samples.

Arrest:

Purpose of arrest:

· TO secure attendance of accused at trial

o Preventive or precautionary measure
o Collect info - personal details/relating to crimes
o To remove obstructions to police
o To retake persons who have escaped from custody.

· Arrest can be made by both police, by Magistrate, and/or by private individuals, (will be
subsequently explained)

· Schedule I - differentiates bw cognizable and non-cognizable offences. Within Cognizable there

are certain sub-specifications.

Section 41 - Any police officer may from a can arrest w/o warrant, if the accused commits in the
presence of a police officer (cuz police itself is eye witness, and is sure of the offence), or a
reasonable complaint has been made, or credible information has been received (so, you don't
need to have filed an FIR against the person), or a reasonable suspicion exists that he
committed an offence.

'These ‘reasonable grounds’ are being recorded simultaneously in the Police/Case Diary, Arrest
Memo, etc.
Post the 2009-2010 Amendment:
o LESS THAN 7 YEARS: For only those cognizable offences punishable w
imprisonment for a term which may be less than 7 years are which may extend to 7
years. Further sub-conditions exist -
§ (i) the police officer has reason to believe on the basis of such complaint,
information, or suspicion that such person has committed the said offence; (ii)
 the police officer is satisfied that such arrest is necessary— (a) to prevent
such person from committing any further offence; or (b) for proper
investigation of the offence; or (c) to prevent such person from causing the
evidence of the offence to disappear or tampering with such evidence in any
manner; or (d) to prevent such person from making any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the Court or to the police officer; or (e) as
unless such person is arrested, his presence in the Court whenever required
cannot be ensured,
§ and the police officer shall record while making such arrest, his reasons in
writing:

o MORE THAN 7 YEARS: Against whom credible information has been received that
he has committed a cognizable offence punishable with imprisonment for a term
which may extend to more than seven years whether with or without fine or with
death sentence and the police officer has reason to believe on the basis of that
information that such person has committed the said offence;

(c) who has been proclaimed as an offender either under this Code or by order of the State
Government; or (d) in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of having committed
an offence with reference to such thing.

S.41 allows arrest in 2 categories:

- Cognizable punishable with 7 years – written grounds for making arrest

- Cognizable punishable with more than 7 years – no need to demonstrate grounds

- Some kind of credible information for both.

Proclaimed offender can be arrested without warrant.

Another police officer can request you to make an arrest, but you must check if the request is
legally valid – shouldn’t follow a blatantly illegal order.
S. 41A – Notice of appearance
No arrest, just calling the person for investigation in cases where usually there is no credible
information or reasonable complaint.

Suspects and witnesses can be called under S.160.

S. 41B – Procedure of arrest and duties of officer making arrest

Every police officer while making an arrest shall—

(a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested or a
respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family,
that he has a right to have a relative or a friend named by him to be informed of his arrest

S.41C – Police Control Room in every district should keep a list of arrested persons & who
made the arrests – should maintain a database of arrested persons/

S. 42- Arrest on refusal to give name and residence

Read Provision

S. 43 – Arrest by Private Person and procedure for such arrest

- Any private person can arrest if any person commits a non-bailable and cognizable offence
in his presence.

- Or if the other person is a proclaimed offender

Abdul Habib Case: The safeguards in S.43 must be maintained.

S. 44 – Arrest by Magistrate
If an offence is committed in the presence of an executive or judicial magistrate, he can
arrest/order arrest, subject to bail and can send to custody [Only within the Mag’s local
jurisdiction, determined by S. 167].

Difference between Arrest and Custody:

Roshan Beevi v Joint Sect. Govt of TN: Every arrest is custody, but not vice versa [may be
protective custody etc]. If the method of arrest does not correspond to S.46, arrest is
nugatory.

S. 46 – Arrest Procedure
(1) Touch the body of the person to arrest them, unless they submit by word or action

GL Gupta v RK Sharma: Make an application to court to handcuff the accused.

(2) If the accused forcible resists arrest, police officer can use all means necessary to effect
the arrest.

Nazir case: All means necessary means getting assistance from others.

(3) If the person accused of committing an offence punishable with death or with
imprisonment for life, the force to arrest can result in death, BUT NOT OTHERWISE.

(4) Save for exceptional circumstances, no woman shall be arrested after sunset and before
sunrise and in cases of exceptional circumstances, they shall be arrested by a woman police
officer after obtaining prior permission of the judicial magistrate of the first class.

Some cases have said:

10 days illegal confinement – police officer is liable (not a ground to acquit the accused)

11th day produced before Magistrate – becomes legal arrest.

S. 47 – Search of the place of person sought to be arrested.

S.59, 60, 149, 150, 151 – Provisions empowering police officers to arrest w some safeguards.
Rights of the Accused:

- Bail
- Legal Counsel
- Cannot be detained in police custody for more than 24 hours

Remand of custody:

S.57: Person arrested not to be detained more than twenty-four hours.—

No police officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of
arrest to the Magistrate’s Court.

In all cases, judicial application of mind is important because it affects somebody’s liberty.
When arrest happens with a warrant, the judiciary has already approved it. The point of S.57
is to get judicial legitimacy for this other kind of arrest as well.

S. 167 order is known as remand order/custodial detention order.

S. 167. Procedure when investigation cannot be completed in twenty-four hours.—

- Any person arrested and detained in custody

- If investigation cannot be completed within 24 hours

- Grounds for believing that the accusation/information is well-founded
- Officer in charger/police officer not lower than sub-inspector shall forward the
accused to Mag
- Judicial Magistrate will review the case diary/accused’s plea and on the basis of
that, do one of 4 things:
A. Discharge
B. Release on Bail
C. Police Custody
C. Judicial Custody
 - 167(2): Mag can, from time to time, keep extending remand orders but at a time,
can authorize only 15 days. After 15 days, police should produce the accused
again and Mag gives another order. Maximum period – 60/90 days (period of
limitation starts from first remand order).
- Under UAPA/POTA/TADA – 30 days remand order.

If the Mag does not have jurisdiction, he can give remand order but to release him, he must
be forwarded to a Mag having jurisdiction.

After 15 days, the accused can only be sent to judicial custody.

After the expiry of 60/90 days, the accused person shall be released on bail if he is prepared
to and furnishes bail – people on bail are deemed to be released under Chap XXXIII.

Once released, can only be taken back into custody under S.309(2) CrPC.

Manoj v S.o MP: Appellant was arrested on 22/6/98 under S.15 NDPS Act by Rajasthan
police. Granted bail on 16/10/98 by Rajasthan HC. Before executing the bond, he was
arrested by MP Police in an NDPS Case, but was not produced before the Magistrate. He
filed under S.167 to HC, went to SC.

SC held that in the second arrest, all procedures needed to be followed afresh. Because he
wasn’t taken to the Magistrate for the arrest, it was invalid.

S. 167 states that the accused must be physically brought to the Magistrate the first time.
Subsequently, can be either in person or via video.

Ramesh Kumar Ravi v S/o Bihar: Though physical production is desirable, it would not
vitiate the order if the situation is beyond the hands of the police.

Inability to furnish bail = Remain in custody

After 90 days, 91st to 100th day you have the absolute right to be released on bail. However,
once the charge-sheet is filed, then no bail is possible.

Woman <18 years will go to remand home/recognized social institution.

S. 167(2A): If judicial Magistrate isn’t there, take the accused to Executive Magistrate/MM
who have judicial powers.

167(3) – Magistrate authorizing detention in police custody shall record his reasons for doing
so.

167(4) – If Mag other than Chief Judicial Magistrate has given order, then he shall forward
the same to the Chief Judicial Magistrate.

167(5) – Summons case: Investigation hasn’t been closed in 6 months, then you can make a
claim to close the case.

Uday Mohanlal Acharya v S/o Maharashtra: If charge sheet/challan not filed within 60 days,
automatic ground for bail.

Krishappa v S/o Madras: Object of S.167 is to ensure detention and punishment of the crime
quickly; to prevent disappearance of material evidence’ in compliance with right to fair trial
under A.21.

In Re M Venkatraman: Mag has the absolute right to decide on detention. However, detention
in police custody is viewed w disfavour and should be the exception, not the rule.

Even after filing chargesheet, if you find some additional evidence, it can be filed under
S.173(8). Usually, filing chargesheet marks the completion of investigation. S.173(8) –
Supplementary chargesheet.

State v Dharam Pal: Court has to keep changing between Police and judicial custody in 15
days under S. 167(2).

Emperor v Kampu Kuki: If sentencing to Police Custody, record reasons in writing.

S.W. Nade v S/o Maharashtra: Make the order based on facts and circumstances in the case
diary.

S.57,167, 309, Chapter 36 – Questions referring to period of limitation.

Yela Manchirapalli v S/o AP: 2 accused surrender before Court, police requested custody.
Mag allowed police custody on the ground that no custodial torture. HC upheld it because it
was a reasoned order.

S/o Karnataka v Babu: Chargesheet should be filed within 90 days from the date of
production before Magistrate, not date of filing of FIR.

Hussainnaira Khatoon case: Undertrials must be informed that they have a ground to be
released on bail after 60 days.

S.169: Release of accused when evidence is insufficient.

S.170: Cases to be sent to the Magistrate when evidence is sufficient.

Both of these are based on Prelim Report and work through S.168.

Dal Singh v State: A mere admission of guilt/confession during investigation is not sufficient
evidence under S.170.

UoI v Prakash: S.170 is not the same as 190. In 170, prelim report by the police and the Mag
has no role to play. He can simply release someone on bail/deny bail.

Harhar Chaitanya v S/o UP: S. 169/170 interfere with bail and remand – not the case itself.

UAPA:

S. 430: Every act is cognizable.

CrPC: 15, 60,90 day timelines – If 90 days isn’t enough, court can extend custody to 180
days based on Police’s request – can move from Judicial to police custody whenever
required, with special reasons.

UAPA: 30, 90, 90 days.

S. 171: No Complainant or witness on his way to court hall be accompanied by the police or
provide a surety other than his own bond

Read Provision.

S.169, 170 – Prelim Report. There is no time limit to file the charge sheet under S. 173.
S. 172: Diary of proceedings in investigation:
All records in this special police diary/case diary/special diary

Criminal Courts can use these diaries to aid them in trial, but not as substantive evidence.

Accused cant use this diary, but if it is used by PO or Court, can use it to refresh their
memory. Shouldn’t be fully revealed to the accused because it may contain confidential
information.

S.161 + 45 IEA – allowed for cross examination

Habeeb Mohd v S/o Hyderabad: Police diary cannot be used as evidence, but only for aiding
in inquiry or trial. It can be a means for elucidation of points which need clearing up before
justice can be done.

Jyoti Jiba v State: It can be an aid in framing the charge, but not for founding the charge.

Queen Empress v Mannu: Since POs cannot be fully trusted, assumed that the case diary has
the proper record of credible information.

S. 159 IEA: Empowers PO to use it to refresh memory

S.161 IEA: Adverse party can use it for cross examination

Siddharth v S/o Bihar: SC disapproved showing the full case diary to the accused.

Kalpanath Rai: Neither feasible nor desirable to produce case diary in all cases, but for the
purposes of anticipatory bail.

Debendra Chandra v Emperor: To know the line of investigation and understand why some
actions were taken.

Peary Mohan Das v. D. Western - Helps check the manner of investigation.

So, basically you cannot draw corroborations from the case diary.
In a case filed by Sangrur resident, the CIC ordered that the contents of the daily diary
maintained by the investigator should be made available under the RTI Act, so that you can
find out who was the officer in charge, secrecy of informational sources, etc.

DIFFERENT REPORTS
· 1. Report to magistrate under S.157 after infor at the thana under S.154.
· 2. Report under S.168 by subordinate PO to officer in charge - this is an interim
report (Ss.169/170)
· 3. 172 diary
· 4. Final/last report - the Chargesheet, under S.173.

Section 173 -
o Police report means a report forwarded by police to magistrate under
S.173(2) Section 2(r).
o Also called police report, final report, chargesheet, challan, investigation
completion report, etc.
· 173(1) - every investigation to be completed wo unnecessary delay (read it w
provisions like 15-60/15-90 day period, the 24-hour period, etc. Even beyond
that, the delay must be justified.

· 2018 Amendment - SubSection 1(a) - investigation in relation to “an offence

under Sections 376, 376A, AB, B, C, D, DA, DB or 376E of the IPC shall be
completed within 2 months from the date on which the information was
recorded by the officer in charge of the police station. This might be
problematic because the entire procedure till 173 might be unreasonably and
inefficiently hastened.

· (2) - As soon as it (investigation) is completed, the officer in charge of the polices

station shall forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the State govt,
stating -
o (a) names of parties
 o (b) nature of information
o (c) names of persons who appear to be acquainted w the circumstances of
the case (witnesses, r/w 160)
o (d) whether any offence appears to have been committed aad if so by
whom;
o2 other provisions.
· Now, if such details aren’t proper, aren’t fully included, what can be done? - it
shouldn’t be treated as a chargesheet, the Magistrate should release the person
on default bail, by not taking cognizance.

DELAY IN FOLLOWING PROCEDURE

o “Shall” be completed wo unnecessary delay - is still directory only - non

compliance won’t vitiate the trial - Bhole v. MP 1993

o But if the delay is carried out w some ulterior motive, in an unfair manner,
and this vitiates the trial by causing miscarriage of justice, such
inordinate dfelay can acquit the accused - Kapur v. Punjab. 1960.

o Power to condone the delay in filing CS - lies with the magistrate, and the
HC cannot interfere - Abubaker v. Kerala 2001.

·A report under Sections 173(2) includes both cases under 169 or 170 (where
your report indicates insufficient evidence). You can’t just stop at the prelim
report under 169/170, because 173 is mandatory. If the 173 report doesn’t find
out inculpatory material, you could file a B-report.

· (3) Where a superior officer of police has been appointed under section 158, the
report shall, in any case in which the State Government by general or special
order so directs, be submitted through that officer, and he may, pending the
orders of the Magistrate, direct the officer in charge of the police station to
make further investigation.

· Cases falling under S.169 -

 o (4) Whenever it appears from a report forwarded under this section that
the accused has been released on his bond, the Magistrate shall make
such order for the discharge of such bond or otherwise as he thinks fit.
(This refers to release on S.169)
o “Or otherwise as he thinks first” - empowers the magistrate to take
cognizance of a case against the person who in his opinion was wrongly
released - Md. Niwaz case
· Cases falling under S.170 -
o (5) When such report is in respect of a case to which section 170 applies,
the police officer shall forward to the Magistrate along with the report—
§ (a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to the
Magistrate during investigation; [mahazar memos, seizure
memos, PoMo report, chemical examiner’s report, handwriting
sample, registers, a/c books, bills, letters to another police
station (who perhaps actually conducted seizure, letters of
request sent to another country, etc.] You could skip one or two
documents and submit later, if the court allows.

§ (b) the statements recorded under section 161 of all the persons
whom the prosecution proposes to examine as its witnesses (so,
needn’t necessarily be all witnesses).

o Mere filing of CS within prescribed time unaccompanied by material

papers as contemplated under 173(5) renders it incomplete. And such
filing of CS amounts to failure to file the same which in turn confers on
the accused the right to be released on bail under S. 167(2).

o The Court is not competent to take cognizance of offence on the basis of

such incomplete CS - MC Venkatareddy 1994.

A CS containing all particulars in S.17(2) is a valid CS, irrespective of the fact that it
doesn’t contain some of the documents required to be filed under S.173(5) - 1983 Cr. L. J.
402 - HP.
Chargesheet – to confirm or rebut what is stated in FIR, compile all the final information on
the case.

You can’t have more than one chargesheet. Filing it means conclusion of the investigation,
unless there’s some special ground like interest of justice. You can continue investigation but
not pursue a new line, and add it as a supplementary chargesheet.

- Ram Aturan Jalan case

Supplementary chargesheet cannot simply be filed. Only if further investigation happens, not
if you mess up or write a terrible chargesheet before and simply want to change.

Especially when supplementary chargesheet filed after trial, hear accused ^^^. Otherwise no
need to hear accused. If the case is closed, and then you find evidence, that is double
jeopardy.

If the court doesn’t accept a second chargesheet, S.311 and S.173 can be used by the court to
call for new witnesses and new evidence and even parties can request the court to allow this.

Section 311 in The Code Of Criminal Procedure, 1973

311. Power to summon material witness, or examine person present. Any Court may, at any
stage of any inquiry, trial or other proceeding under this Code, summon any person as a
witness, or examine any person in attendance, though not summoned as a witness, or. recall
and re- examine any person already examined; and the Court shall summon and examine or
recall and re- examine any such person if his evidence appears to it to be essential to the just
decision of the case.
Further investigation is the continuation of the first investigation, not a fresh/re-investigation.
It has to be submitted by the same agency.

As far as possible, chargesheet should be filed AS SOON AS investigation is completed.

Every case that begins with investigation should end with chargesheet, even if it is a fake
complaint/frivolous complaint. A,B,C report should still be filed. There must be report in
every case. – Appa Ragho case
(d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view
to his taking action under this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report. Explanation.- A report made by a
police officer in a case which discloses, after investigation, the commission of a non-
cognizable offence shall be deemed to be a complaint; and the police officer by whom such
report is made shall be deemed to be the complainant;

The explanation in 2(d) words when a chargesheet for a cog offence indicates tht it is a NC
offence. So the FIR will be turned into a complaint and lodged with the Mag by the IO.
That’s different from 155, where Mag himself orders investigation.

S.190

Rupan Deol Bajaj case:

Even if police files a B report, Mag could still take cognizance of an offence under S.190 and
has judicial discretion. Mag can’t order police to submit a specific kind of chargesheet, but it
is open to the court to disagree with the chargesheet. He can order for further investigation
under 156(3) before taking cognizance. After taking cognizance, he can order for more
investigation under S.202. SC took cognizance and asked mag to proceed w trial.

Should the informer be informed if the case is dropped?

UPSC v. S Papiah Yes, it’s a mandatory requirement. Non-compliance is illegal. It is the duty
of the IO.

Bail
Bail is the rule and jail is the exception. Someone else can stand in as a surety to the accused.

167, 169, 170.

When there are 2-3 provisions, the case will be the most serious. For example, if there a
bailable and a non-bailable offence committed by a person, the case will be considered as a
non-bailable offence. (indirectly mentioned in S.155).

S.436 – bailable offences –

when the arrest happened without a warrant, or he has surrendered before the court, then the
accused is prepared to give the bail, such person SHALL be given bail. Can release on
personal bond, if surety is not possible. If the accused fails to comply with the conditions in
the bail bond, bail can be rejected.

Station bail is also possible. Police officer can also give.

S.436A - maximum period of detention for an udertrial prisoner.

S.437 – non bailable offence

He is arrested or detained without warrant by an officer of police station. Only magistrate

courts can give bail here. Discretionary power. This person won’t be released if there are
reasonable grounds for believing that he is guilty of an offence punishable with life or with
death. They also won’t be released if it’s a cognizable offence and they have already been
convicted for an offence with death, life, or more than 7 years, or convicted twice or more
times of an offence punishable w 3-7 years.

S.433, 433A CrPC – how to consider the sentences.

S.55, 57 IPC. How to calculate punishment.

437(2) – no sufficient grounds to believe that the accused is involved in the offence as of
now, but there is enough evidence to continue with the case. Then the accused, subject to
446A, can be released on bail. This is parallel to 169.

“169. Release of accused when evidence deficient. If, upon an investigation under this
Chapter, it appears to the officer in charge of the police station that there is not sufficient
evidence or reasonable ground of suspicion to justify the forwarding of the accused to a
Magistrate, such officer shall, if such person is in custody, release him on his executing a
bond, with or without sureties, as such officer may direct, to appear, if and when so required,
before a Magistrate empowered to take cognizance of the offence on a police report, and to
try the accused or commit him for trial.”

169 is only investigation stage. 437(2) relates to all three stages – investigation, inquiry, trial.

437(3) -Conditions for Bail

Gurucharan v. State, Delhi Administration, Madhapuram Maddulette Naidu v. State of AP

· Bail depends on the nature and gravity of the charge.

· Severity of the punishment entailed.
· Social position of the accused
· Nature of the evidence
· Character of the accused

(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2),
may, if it considers it necessary so to do, direct that such person be arrested and commit him
to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable
offence is not concluded within a period of sixty days from the first date fixed for taking
evidence in the case, such person shall, if he is in custody during the whole of the said period,
be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable
offence and before judgment is delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any such offence, it shall release the
accused, if he is in custody, on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.

CrPC notes – 21.09.2020

· Date: 21 September 2020.

o Kokan Rao v. State 1998 - Bond amount must be reasonable
o Section 439
 § If Magistrate ain’t competent to provide bail (due to serious
offence, etc, - under subsection 3 of S.437), or doesn’t exercise
437 powers, or rejects under 439, then the a fresh bail appln like
an appeal can be done before the HC.
§ The HC can send me back to the Magistrate - it could happen,
§ You can approach, similarly, the Sc under an SLP (You don’t have
a specific provision).
§ S.439 deals with a person in custody. 438 empowers courts to grant
anticipatory bail.
§ The HC can reduce the bail amount also.
§ The proviso says that if the case is triable exclusively by court of
sessions (7yrs or more), or is punishalble with life imprisonment,
the Court must mandatorily give a notice to the Public
Prosecutor.
§ Clause 2 - Gives power to cancel bail.
8
o Section 438 (Anticipatory Bail - AB)
§ In anticipatory bail, there is a possibility of getting arrested, but AB
makes it the same situation as bailable offence - it’s not that you
are not arrested at all- it is that you are arrested and can get
immediately released on furnishing AB. That’s why, AB is only
for non-bailable offence (coz in bailable offences you’ll
anyways be released).
§ “Arrest” means only a formal arrest here, not necessary to lock
him/her behind bars etc. But you take photographs, details, etc.,
just like in normal arrests.
§ AB can be moved only before COURT OF SESSION, or AB.
§ THe proviso to S.438 -
· Provided that, where the High Court or, as the case may be,
the Court of Session, has not passed any interim order
under this sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to an officer
in-charge of a police station to arrest, without warrant
 the applicant on the basis of the accusation apprehended
in such application.
· So, an interim order can be requested before
anticipatory bail. Court on its own, passes the interim
order before anticipatory bail is granted. Based on
reasonable grounds.

o PROCEDURE for NON-ANCIPATORY (NORMAL) BAIL - Both for bailable and

bailable:
§ Bailable offence - if arrested, bail is furnished based on certain
conditions.
§ Bailable offences - after 24 hours, when produced before the
magistrate, the lawyer obtains vakalat etc, and makes a bail
appln before the court. Grounds from arrest warrant, FIRs etc.,
can be used to justify.
§ A notice of the same is given to the PP.
§ THe PP can file an objection to the bail, and if he/she doesn’t, the
bail is granted.
§ If such appln for bail is made during the course of investigation,
the constable submits to the court the case diary/FIR. The other
party cannot go through the case diary.
§ The case is then immediately posted for hearing. Both parties are
heard, and later an order for rejection or granting of bail is
provided.
§ If bail is granted, there are obviously conditions like surety/without
surety, when the person must appear b4 concerned authorities
(like let’s say the Magistrate Court since it .
§ Released on custody - direction to the superintendent of prison
authorities/police authorities to order release.\
§ In non-bailalble offences, you are not required to come to the
court until a particular point of time.

o PROCEDURE FOR ANTICIPATORY BAIL:

 § The lawyer obtains vakalat etc, and makes a bail appln before the
court. Grounds from arrest warrant, FIRs etc., can be used to
justify.
§ A notice of the same is given to the PP.
§ THe PP can file an objection to the bail, and if he/she doesn’t, the
bail is granted.
§ You don’t even have FIRs here, but the court can call for Case
diary..
§ At the stage of hearing, the accused must be present.
(notnecessary in ordinary bail if produced from judicial custody,
but required in case produced from police custody). The
presence here is because if the court rejects, this guy might run
away. Poof.
§ Anticipatory bail can be granted with conditions.
§ You can release,during hearing, on interim bail.

o Conditions for anticipatory bail;

§ 1. Cash, immediately
§ 2. Surety that you would pay the cash/penalty in the future.
Documents which show this can be allowed.
§ 3. Property papers, to show that you won’t run away because you
have properties in that area.
§ Sureties (Solvents as guarantees)

o S. 437 - Clause (3) - (3) If such person is thereafter arrested (after granting
AB)without warrant by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest or at any time
while in the custody of such officer to give bail, he shall be released on
bail (mandatory); and if a Magistrate taking cognizance of such offence
decides that a warrant should be issued in the first instance against that
person, he shall issue a bailable warrant in confirmity with the direction
of the Court under sub-section (1).
 o SURETIES AND BONDS - Section 441, and the court’s discretion from
case to case..

o CANCELLATION OF BAIL - Section 446A.

o Siddharam Satlingappa Mhetre v. State of Maharashtra (2010)-
§ is anticipatory bail a temporary bail? (which would evenpost gettin
this, you had to still make another application for bail under
S.437 etc). HELD, anticipatory bail is just like a normal bail,
no need to make another appliation for normal bail.
§ “It would not be proper to liit the life of anticipatory bail. When the
court observed that the AB is for limited duration and thereafter
the accused should apply to the regular court for bail, that means
the life of sectio 438 CrPC would come to an end after that
limited duration. This limintation has not been envisaged by the
legislature. The constitutoin Bench in Sibbia’s case clearly
observed that it is not necessary to rewrite section 438 CrpC. So,
in view of the clear declaration of law by the Constitution Bench,
the life of the order under Sec. 439 CrPC granting bail cannot be
curtailed.”

++++++++++++++++++++++++++++++++(BAIL CONCLUDED)+++++++++++++++++
+++++++
Private Complaints (Ss. 200-203).

· When case comes to court for taking cognizance, and there is a chargesheet (CS)
the court can go thur that, seizures etc and decide whether cognizance can be
taken or not.
· When however, it is based only on private complaints, the presumption in serious
cases of sexual offences etc., is that the complaint is valid. But the Magistrate is
obligated to take extra care (Ss. 200-203):
o S. 200 - The complainant must be put on oath and be asked to explain the
complaint. Connect it to S.173 - if the CS is filed but the investigator
indicatees in it a non-cognizable offence, the IO is examined as a
 complainant under this section, but you need not necessarily impose
oath/other safeguards on him.
o The court can also directly acquit the accused if the IO doesn’t appear
before the court often - for instance, in section 256 in case of summons
cases.

++++++++++++++++++++++++++++++++(
Restrictions on taking cognizance by anyone’s FIR/complaint

Section 195 -

· If the public servant issues notice to A under S.160, then you have committed a
contempt of public servant. So, S.195 tells that the public servant to make the
complaint.

Section 196 -

· If offence related to conspiracy or against the state, state sanction is necesary

(maybe it is an offence committed long ago, and govt feels it necessary)

Section 198 (Offences related to marriage)

· Only the specific victim of the offences against marriage, can file a complaint
before the court. Can max include near relatives,but not third parties.
· THIESE ARE EXCEPTIONS TO THE RULE THAT ANYONE CAN INVOKE
CRPC BECAUSE CRIMES AFFECT THE SOCIETY AT LARGE. Since
cognizance is ataken either on the basis of CS, FIR, or complain, these
provisions are exceptions to general filing ofeven FIRs by anyone - these
provisions mean that only specific people can make complaint on which basis
cognizance can be taken,

Section 199 (Offences -defamation)

Apart from these, if the complaint filed is too delayed, you cannot take cognizance. Also,
in cases where there is marital rape of minor, you can’t punish beyond a particular
period of time.

2 kinds of jurisdiction of the court:

 1. Territorial based (Ss.170 etc)
2. Competency based.

Keeping in mind competency, territory, the Magistrate (JMFC) can transfer the case
(committal) under S.192 or S.193. (Provisions like S.209 talk about committing, they go a
further step ahead, by talking about remand - clause [b]) Now when it comes to the actual
trial court, the public prosecutor becomes important.
Public Prosecutor

· Defined under S.24. DEFENCE LAWYER is available under S.303.

· There are exemptions that the accused should be directly be present b4 court -
done in Telgi case.
· COURT SHOULD BE OPEN - SECTION 327 - The place in which any
Criminal Court is held for the purpose of inquiring into or trying any offence
shall be deemed to be an open Court, to which the public generally may have
access, so far as the same can conveniently contain them: (PUblic trial in the
presence of the public) But in some cases, you can have specific parts ofthe
trial in camera.
· Like in KHehar singh (Indiira Gandhi trial case).
· In some cases, you can have family members, etc., present, Read the section.

Should private complaints be fought by PP? Yes, because state intervention and state
resources would be a good aid for the victim.

Cases could have been initiated on private complaint, but PP should still be the one who
conducts the prosecution.

S.24 of the CrPC – depending upon the hierarchical arrangements of the courts and the rank
of the PPs (which includes assistant PPs, additional PPs and special PPs), PPs are appointed
in different courts.

If mag court – assistant PPs; Sessions courts – PPs. At both the levels, you can have
additional PPs and special PPs. (Special PPs can be requested by the victim, or in special
areas of law, or in high profile issues).
For private cases, their private lawyers can only assist the PPs and submit written arguments
(2010 amendment strengthening victim’s rights).

Who will pay the special PP?

They are performing a public function on behalf of the State, so State should pay. The other
reason is that the criminal justice system will be biased, and prejudiced if private parties are
allowed to pay.

MUKUL DALAL V. UOI – [1988] SCC [Cri] 566 – Court held that private parties can be
allowed to pay the remuneration to the special PPs. But the ultimate payment and the amount
must be fixed by and paid through the court.

Summons trial

- Start with the list of accusation against the accused

- Then asked if they plead guilty or not
- Private party can withdraw the case at any point at any time before a final
order is passed in any case under this Chapter, satisfies the Magistrate that
there are sufficient grounds for permitting him to withdraw his complaint
(S.257)

Warrant trials

- Offence punishable with more than 2 years

- Dischargal (S.239) even before you charge (S.240)
- After charge is framed, you can’t discharge him – release only through
acquittal
- Ask if he pleads guilty or not
- Continue if he doesn’t plead guilty or you’re not convinced by him
pleading guilty
- Then PW witnesses will be examined, evidence will be looked into
- If necessary, evidence can be taken by defence (defence can choose to
remain silent or not prove anything, because burden is on prosecution)
- Arguments (chargesheet – 244-247; private complaint – S.190)
But private party can’t withdraw the cases from warrant and sessions trials. But PP can
withdraw it in all the types of trials.

321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in
charge of a case may, with the consent of the Court, at any time before the judgment is
pronounced, withdraw from the prosecution of any person either generally or in respect of
any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of
such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is
required, he shall be acquitted in respect of such offence or offences: Provided that where
such offence-
(i) was against any law relating to a matter to which the executive power of the Union
extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to
the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or
purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case
hag hot been appointed by the Central Government, he shall not, unless he has been permitted
by the Central Government to do so, move the Court for its consent to withdraw from the
prosecution and the Court shall, before according consent, direct the Prosecutor to produce
before it the permission granted by the Central Government to withdraw from the
prosecution.

Reason:
- PP knows that there is genuinely no evidence
- They haven’t been able to catch the correct accused
- In relation to security of the state, or some sensitive issues
- Or too many years has passed after the crime has happened

Earlier and all, randomly PPs were withdrawing the case. Cases are simply getting withdrawn
against the government in power. PP is dictated by the government to withdraw the case.
Court should examine the reason, examine the application and the reason given by the PP to
withdraw this case – which is given in writing. ‘Consent of the court’ is important under this
section. But most of the cases it is a mechanical exercise of power by the PP and courts are
silent.

Abdul Kareem v. Union of India

Karnataka film star Dr. Rajkumar kidnapped by Veerappan and some of his co-accused were
undergoing criminal prosecution. One of Veerappan’s demands was to release those co-
accused in jail who were facing criminal prosecutions. To control the situation, State govt
decided to release those offenders by instructing the special PP under TADA act to withdraw
the case. He also did that. Then victim’s father in that co-accused’s case approached court
and court said you have to consider the case of victims. So court didn’t allow the withdrawal.

Same ratio in the SHEO NANDAN PASWAN V. ST OF BIHAR – AIR 1983 SC 194 –
victim’s rights should be considered and PP cannot mechanically withdraw the case upon the
order of the government.

S.300

1. A person who has once been tried by a Court of competent jurisdiction for an offence
and convicted or acquitted of such offence shall, while such conviction or acquittal
remains in force, not be liable to be tried again for the same offence, nor on the same facts
for any other offence for which a different charge from the one made against him might
have been made under Sub-Section (1) of section 221, or for which he might have been
convicted under Sub-Section (2) thereof.
2. A person acquitted or convicted of any offence may be afterwards tried, with the
consent of the State Government for any distinct offence for which a separate charge
might have been made against him at the former trial under Sub-Section (1) of section
220.
3. A person convicted of any offence constituted by any act causing consequences
which, together with such act, constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned offence, if the consequences
had not happened or were not known to the Court to have happened, at the time when he
was convicted.
4. A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction be subsequently charged with, and tried for,
 any other offence constituted by the same acts which he may have committed if the Court
by which he was first tried was not competent to try the offence with which he is
subsequently charged.
5. A person discharged under section 258 shall not be tried again for the same offence
except with the consent of the Court by which he was discharged or of any other Court to
which the first-mentioned Court is subordinate.
6. Nothing in this section shall affect the provisions of section 26 of the General Clauses
Act, 1897 (10 of 1897) or of section 188 of this Code.

This doesn’t allow a new trial if a trial has already been conducted. But if the old trial had a
defect by way of jurisdiction, subject matter, rank of the court, etc. territorial jurisdiction –
may or may not quash, you have to show that lack of territorial jurisdiction has caused
prejudice to the accused. But for competency based jurisdiction, automatically quashed if it
was tried in the wrong court.

309. Power to postpone or adjourn proceedings.

(1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in
particular, when the examination of witnesses has once begun, the same shall be continued
from day to day until all the witnesses in attendance have been examined, unless the Court
finds the adjournment of the same beyond the following day to be necessary for reasons to be
recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it
necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it
may, from time to time, for reasons to be recorded, postpone or adjourn the same on such
terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand
the accused if in custody: Provided that no Magistrate shall remand an accused person to
custody under this section for a term exceeding fifteen days at a time: Provided further that
when witnesses are in attendance, no adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded in writing: 1 Provided also that no
adjournment shall be granted for the purpose only of enabling the accused person to show
cause against the sentence proposed to be imposed on him.] Explanation 1.- If sufficient
evidence has been obtained to raise a suspicion that the accused may have committed an
offence, and it appears likely that further evidence may be obtained by a remand, this is a
reasonable cause for a remand. Explanation 2.- The terms on which an adjournment or
postponement may be granted include, in appropriate cases, the payment of costs by the
prosecution or the accused.

Speedy trial, but when witnesses are present, don’t unnecessarily adjourn.

310. Local inspection.

(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after
due notice to the parties, visit and inspect any place in which an offence is alleged to have
been committed, or any other place which it is in his opinion necessary to view for the
purpose of properly appreciating the evidence given at such inquiry or trial, and shall without
unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case and if the prosecutor,
complainant or accused or any other party to the case,
1. Ins. by Act 45 of 1978, s. 24 (w. e. f. 18- 12- 1978 ).

so desires, a copy of the memorandum shall be furnished to him free of cost.

^^ NDPS cases, property disputes, crime scenes etc. wherever you can’t shift the evidence to
the court.

Ss.309-312 – go through.