Criminal Procedure Code

Unit 1 - Introductory

Q. 1 Describe the organization of police, prosecutor, defense counsel and prison authorities and their duties,
functions and powers.

Unit 2 - Arrest

Q. 2 What do you understand by Arrest? How is an arrest made? When can the police arrest a person without
an order from a magistrate and/or without a warrant? Explain the rights of an arrested person. [Right to know
the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to consult and to be defended by legal practitioner of
his choice - Art 22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail Sec 50(2), Right to be
produced before nearest magistrate within 24 hrs - Art 22(2) Sec 56, 57, Right not to be detained in custody
beyond 24 hrs - Art 22(2) Sec 57, 167, Right to be examined by medical practitioner]

Q. 3 Explain the procedure for compelling appearance as given in CrPC. What do you know about summons
in this context? Describe the procedure for issue and service of summons. How can a summons be served on
a govt. employee or outside local limits?

Q. 4 What do you understand by Warrant of Arrest? Describe the procedure for issue and service of a warrant
of arrest. When can a court issue warrant of arrest in cases in which it is empowered to issue summons?
When can a warrant be issued for recovery of a fine?

Q. 5 When is a person declared Absconder? (Sec 82, 83, 84, 85) Explain the procedure for publication of
proclamation for persons absconding.

Unit 6 - Trial Process

Q. 6 What is meant by Commencement of proceedings? [Sec 200, 201, 202] When can a complaint be
dismissed?[Sec 203]

Q. 7 What is offence? What is a bailable and non-bailable offence? What is Bail? When and When not, can it
be granted? Under what circumstances can bail be granted for a non-bailable offence? What do you
understand by Anticipatory bail? When is it granted and when it may be refused? What is the difference
between the general provisions of anticipatory bail and regular bail? Explain the procedure for bail in Non-
bailable offenses. Discuss the conditions for granting bail. When may a court refuse to grant bail? Can the
courts decision be appealed? When can a bail be canceled?

Q. 8 Explain general principles concerning bond [Sec 441 - 450]. Explain the procedure that is followed when
a bond is forfeited.

Unit 8 - Charge

Q. 9 What is a Charge? What are the contents of a Charge? Discuss the effects of errors in a Charge? How is a
charge different from FIR? Discharge - pre-charge evidence.
 Q. 10 Explain the principle of Separate charges for distinct offences. Are there any exceptions? (sec 218, 219,
220, 221, 223). When can multiple offences be charged separately, when can they be tried in the
same/different trial? What do you understand by Joinder of charges?s

Unit 9 - Preliminary Pleas to bar the trial

Q. 11 What are the pleas that can be used to bar the trial?

Unit 13 - 14 - Juvenile Delinquency and Probation

Q. 12 Describe the main features of Juvenile Justice (Care and Protection) Act, 2000. Who is a child in need
to care and protection? Discuss the nature of Juvenile Delinquency. State the procedure followed by Juvenile
Justice Court. What protections are given by the legislature and the judiciary to juvenile delinquents? State
the orders that can be passed for delinquent children under this act.

Q. 13 Discuss the aim and objective of Probation of Offenders Act, 1958. State the powers of the court
regarding release of certain offenders on probation of good behavior under this act. Explain the procedure
followed against the offender who breaches the probation conditions. Explain the offenses in which a court
can and cannot grant the benefit of probation. Section 360 of CrPC and Sec 4 of Probation of Offenders Act
both empower the court to release a convicted offender on probation of good behavior. Which section has
overriding effect?

General

Differences - Summons Case and Warrant Case, Compoundable and Non compoundable offences,
Information and Complaint, Sufficient ground for Commitment and Sufficient ground for Conviction,
Discharge and Acquittal in Warrant case, Cognizable offence and Non-cognizable offence, Short Notes -
FIR, Summary Trial, Public Prosecutor (Discussed in Q.1)

(Discussed earlier - Bailable offence and non-bailable offence, Anticipatory bail and regular bail)

The following topics are important for general understanding of CrPC

Unit 3 - Search and Seizure

What are the general principles relating to Search (Refer to Sec 99, 100, and 101)?. Can the police search
without a search warrant? (Police search during investigation - sec 165, 166, 153). When can any court issue
a search warrant (Sec 83, 94, 97, 98)?

What do you understand by Seizure (Sec 102)?

 Discuss constitutional Aspects of validity or search and seizure proceedings.

Unit 4 - FIR

What do you understand by FIR (Sec 154)? What is its evidentiary value? (Refer Sec 145, 157 of Evidence
Act). What are the duties of a police officer and the procedure for investigation after receipt of such a report?
When can a police officer proceed for an Investigation Report? Is a statement given by the accused in police
custody admissible in evidence?

Unit 5 - Magisterial Powers

What do you understand by taking cognizance of an offence? Explain the procedure that is adopted in taking
cognizance or dismissal of complaint? What are the powers of a magistrate regarding taking cognizance?

Explain the circumstances under which a magistrate is empowered to remove public nuisance according to
criminal procedure code. What provisions have been made for the police to take preventive actions?

Unit 11 - Judgment

What are the essentials of a Judgment? What is the mode of its delivery (Sec 353, 362, 363)? Can a criminal
court alter or revise its own judgement after it is signed?

What are the post conviction options in lieu of punishment - emerging penal policy (Sec 360, 361, 31)?

Compensation and Cost (Sec 357, 358).

Unit 12 - Appeal, Review, and Revision

What do you mean by appeal, revision, and review? Does a criminal court have jurisdiction to review its
judgment without provision? Discuss the powers of the appellate court under CrPC.

Explain the procedure of appeal against the judgment of session court in High Court. In what cases, an appeal
cannot be made?

State the powers of the Govt. regarding suspension, remission, and commutation of sentences.

General

What do you understand by Summary trial? How is it different from Ordinary trial? Can a court convert a Summon
case into a warrant case? Explain.

Explain the procedure that is adopted for the trial of a Summon case and a Warrant case.

Explain the procedure prescribed for trial of an offence before the court of sessions.

Explain the irregularities which vitiate proceedings.

Q. Describe the organization of police,
prosecutor, defense counsel and prison
authorities and their functions, duties, and
powers.
Police
The ordinary criminal courts derive their existence from CrPC. However, CrPC does
not say anything about the constitution of Police. It assumes the existence of police
and devolves various powers and responsibilities on to it.

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

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

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

Powers -
1. The Cr P C confers specific powers on the members of police force who are
enrolled as police officers. These powers include power to make an arrest, search,
and investigate. Wider powers have been given to police officers in charge of a
police station. As per Section 2(s), police station means any post or place that is
generally or specially designated by the state govt as a police station. Further, as
per Section 2(o) officer in charge of a police station includes the officer who is
present at the police station and is next in rank to the police officer in charge, if he
is on leave or is absent. This only increases the importance of the police officer in
charge of a police station.
2. Section 36 of CrPC specifies that officers of police who are superior in rank to
police officer in charge of a police station can exercise all the powers of that police
officer. In the case of State of Bihar vs J A C Saldanha SCC 1980, SC held that if
the Inspector General (Vigilance) is an officer superior to the officer in charge of the
police station he can exercise the powers of that officer through out the territory to
which the superior officer has been appointed, which, in this case is the entire
territory of Bihar.
Duties -

Prosecutor
A crime is a wrong not only against an individual but is also against the society. It is
because of this reason that the state, which represents the collective of people,
participates in the criminal trial of an accused, specially if the crime is of cognizable
nature. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such
trials. As per section 2(u), Public Prosecutor means any person appointed under
Section 24 and includes any person acting under the directions of the public
prosecutor. Section 24 of CrPC specifies the rules for appointment of Public
Prosecutor. A person shall be eligible to be appointed in High Court as Public
Prosecutor if he has been in practice as an advocate for not less than seven years.
The appointment can be made only after consultation with the High Court. Further,
the central govt. can appoint a Public Prosecutor for conducting in a high court any
prosecution, appeal, or other proceeding on behalf of the Central Govt.

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

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

Powers -
1. As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the
authority to appear and plead before any court in any case entrusted to him.
2. As per Section 321, he can withdraw from the prosecution against any person
with the consent of the court.
According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in
Session Courts and the High Courts and Assistant Public Prosecutors are appointed
for conducting prosecution in Magistrates' Courts. As per prevailing practice, in
respect of cases initiated on police reports, the prosecution is conducted by the APP
and in cases initiated on a private complaint the prosecution is either conducted by
the complainant himself or by his duly authorized counsel.

Defense Counsel
As per Section 303, any person accused of an offence before a Criminal Court has
a right to be defended by a pleader of his choice. Such pleaders are not in regular
employment of the state and a paid remuneration by the accused person. Since, a
qualified legal practitioner on behalf of the accused is essential for ensuring a fair
trial, Section 304 provides that if the accused does not have means to hire a
pleader, the court shall assign a pleader for him at state's expense.

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

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

Q. What do you understand by Arrest? How is an arrest

made? When can the police arrest a person without an order
from a magistrate and/or without a warrant? Explain the
rights of an arrested person. [Right to know the grounds of
arrest - Art 22(1), Sec 50, 50(A), Right to consult and to be
defended by legal practitioner of his choice - Art 22(1), Sec
303, Right to legal aid - Art 21, Sec 304, Right to bail Sec
50(2), Right to be produced before nearest magistrate within
24 hrs - Art 22(2) Sec 56, 57, Right not to be detained in
custody beyond 24 hrs - Art 22(2) Sec 57, 167, Right to be
examined by medical practitioner]
Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty.
Thus, after arrest, a person's liberty is in control of the arrester. Arrest is an important tool for
bringing an accused before the court as well as to prevent a crime or prevent a person suspected
of doing crime from running away from the law. Cr P C contemplates two types of arrests - an
arrest that is made for the execution of a warrant issued by a magistrate and an arrest that is made
without any warrant but in accordance with some legal provision that permits arrest.

Section 41 to 44 contain provisions that govern the arrest of a person by police and private
citizens, while Section 46 describes how an arrest is a made.

(Note - Arrest in case of Warrant is discussed in another question.)

Arrest without warrant

There are situations when a person may be arrested by a police officer, a magistrate or even
private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows -
Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any
person -
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint
has been made, or credible information has been received, or a reasonable suspicion exists, of his
having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall
lie on such person, any implement of house-breaking; or
(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; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union;
or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India, would
have been punishable as an offence, and for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of
section 356; or
(I) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the offence or
other cause for which the arrest is to be made and it appears therefrom that the person might
lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested
any person, belonging to one or more of the categories of persons specified in section 109 or
section 110.

In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be
made merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in
State vs Bhera, CrLJ, 1997, it was held that the "reasonable suspicion" and "creditable
information" must relate to definite averments which must be considered by the Police Officer
himself before he arrests the person.

Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to
give his name and residence. As per Section 42(1), when any person who, in the presence of a
police officer, has committed or has been accused of committing a non-cognizable offence
refuses, on demand of such officer, to give his name and residence or gives a name or residence
which such officer has reason to believe to be false, he may be arrested by such officer in order
that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the true name and residence of
such person have been ascertained. He may be required to execute a bond, with or without
sureties, to appear before a Magistrate if necessary.

Provided that, if such person is not resident in India, the bond shall be secured by a surety or
sureties resident in India.
Further, as per sub clause (3), should the true name and residence of such person not be
ascertained within twenty-four hours from the time of arrest or should he fail to execute the
bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the
nearest Magistrate having jurisdiction.

Arrest by Private person

Even private persons are empowered to arrest a person for protection of peace in certain
situations. This is important because police cannot be present at every nook and corner and it is
up to private citizens to protect the society from disruptive elements or criminals. As per section
43(1), any private person may arrest or cause to be arrested any person who in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over any person so arrested to a police
officer, or, in the absence of a police officer, take such person or cause him to be taken in custody
to the nearest police station. Thus, if a person is drunk and is committing assault on others, he
may be rightly arrested by any citizen and taken to the nearest police station.

However, it is important to note that this power can be exercised only when the person making
an arrest is under a bona fide impression that a non-bailable and cognizable office is being
committed in his presence. One does not have a right to arrest on mere suspicion or on mere
opinion that an offence has been committed.

Procedure on arrest by private person -

As mentioned above, the private person must take the arrested person to the police officer or
police station without any reasonable delay. If he keeps the person in his own custody, he will be
guilty of wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions of
section 41, a police officer shall re-arrest him. Further, as per section 43(3), if there is reason to
believe that he has committed a non-cognizable offence, and he refuses on the demand of a
police officer to give his name and residence, or gives a name or residence which such officer
has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if
there is no sufficient reason to believe that he has committed any offence, he shall be at once
released.

A new provision has been incorporated as Section 50A, which makes it obligatory for the police
officer or any other person making an arrest to give the information regarding such arrest and
place where the arrested person is being held to any of his friends, relatives or such other persons
as may be disclosed or nominated by the arrested person for the purpose of giving such
information. Further, the police officer shall inform the arrested person of his rights under
subsection as soon as he is brought to the police station. He must make an entry of the fact as to
who has been informed of the arrest of such person in a book to be kept in the police station in
such form as may be prescribed in this behalf by the State Government. It is the duty of the
Magistrate before whom such arrested person is produced, to satisfy himself that the
requirements of this section has been complied with in respect of such arrested person.

Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether
Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to
arrest the offender, and may thereupon, subject to the provisions herein contained as to bail,
commit the offender to custody. Further, (2) Any Magistrate, whether Executive or Judicial, may
at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person
for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Important thing to note here is that magistrates have wider power than private citizen. A
magistrate can arrest on the ground of any offence and not only on cognizable offence. As held in
the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the
arrested person must be produced before another magistrate within 24 hours, otherwise his
detention will be illegal.

Arrest how made -

Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless
the person being arrested consents to the submission to custody by words or actions, the arrester
shall actually touch or confine the body of the person to be arrested. Since arrest is a restraint on
the liberty of the person, it is necessary for the person being arrested to either submit to custody
or the arrester must touch and confine his body. Mere oral declaration of arrest by the arrester
without getting submission to custody or physical touching to confine the body will not amount
to arrest. The submission to custody may be by express words or by action. For example, as held
in the case of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the
police accusing himself of committing an offence, he would be considered to have submitted to
the custody of the police officer. Similarly, if the accused proceeds towards the police station as
directed by the police officer, he has submitted to the custody. In such cases, physical contact is
not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was held that
arrest need not be by handcuffing the person, and it can also be complete by spoken words if the
person submits to custody.

Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the
arrest, such police officer or other person may use all means necessary to effect the arrest. Thus,
if the person tries to runaway, the police officer can take actions to prevent his escape and in
doing so, he can use physical force to immobilize the accused. However, as per Section 46(3),
there is no right to cause the death of the person who is not accused of an offence punishable
with death or with imprisonment for life, while arresting that person. Further, as per Section 49,
an arrested person must not be subjected to more restraint than is necessary to prevent him from
escaping.

Due to concerns of violation of the rights of women, a new provision was inserted in Section
46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional
circumstances, in which case the arrest can be done by a woman police officer after making a
written report and obtaining a prior permission from the concerned Judicial Magistrate of First
class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the
police station or confining the movement of the person in the precincts of the police station
amounts to arrest of the person.

Rights of an Arrested person (GBMLLIM)

Cr P C gives wide powers to the police for arresting a person. Such powers without appropriate
safeguards for the arrested person will be harmful for the society. To ensure that this power is not
used arbitrarily, several restraints have been put on it, which, indirectly, can be seen as
recognition of the rights of a person being arrested. Further, once arrested, a person is already at
a disadvantage because of his lack of freedom and so he cannot take appropriate steps to defend
himself. Thus, to meet the needs of "fair trial", several provisions are given in CrPC, that give
specific rights to an arrested person. These rights can be described as follows -

1. Right to know the grounds of arrest - Section 50(1) - According this provision, every police
officer or other person arresting any person without warrant shall forthwith communicate to him
full particulars of the offence for which he is arrested or other grounds for such arrest.
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55, the subordinate officer must notify the person to be arrested of the substance
of the written order given by the senior officer, which clearly specifes the offence for which he is
being arrested. The same provision exists in case of an arrest made under a warrant in Section
75. In this case, the police officer or any person making arrest under warrat must notify the
substance of the warrant to the person being arrested and if required, must show the warrant. As
held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the
warrant is not notified, the arrest would be unlawful.

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

This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No
person who is arrested shall be detained in custody without being informed, as soon as may be,
of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.". It embodies two distinc rights - the right to be told of the
grounds of arrest and the right to consult a legal practioner of his choice. The second right of
consulting a legal practitioner of his choice actually depends on the first right of being told about
the grounds of arrest. If the person doesn't know why he is being arrested, he cannot consult a
legal practioner meaningfully. In Harikishan vs State of Maharashtra AIR 1962, SC held that
the grounds of arrest must be communicated to the person in the language that he understands
otherwise it would not amount to sufficient compliance of the constitutional requirement.

2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are not
very serious do not require the offender to be kept in custody. For such offences, Cr P C allows
the offender to ask for bail as a matter of right. However, not every person knows about Cr P C
and so they cannot know that they can get bail immediately. Thus, Section 50(2), provides that
where a police officer arrests any person other than a person accused of a non-bailable offence
without warrant, he shall inform the person arrested that he is entitled to be released on bail and
that he may arrange for sureties on his behalf.

3. Right to be taken to magistrate without delay - Holding a person in custody without first
proving that the person is guilty is a violation of human rights and is completely unfair. At the
same time, holding a person in custody is necessary for the police to carry on their investigation
of a crime. These two are contradictory requirements and a balance must be found between them.
Since police has arrested the person, it cannot be the agency that determines whether person must
be kept confined further. This can only be decided by a competent judicial authority. This is
exactly what is embodied in Art 22(2) that gives a fundamental right to the arrested person that
he must be produced before a magistrate within 24 hours of arrest. It says, "Every person who is
arrested and detained in custody shall be produced before the nearest magistrate within a period
of twenty-four hours of such arrest excluding the time necessary for the journey from the place
of arrest to the court of the magistrate and no such person shall be detained in custody beyond
the said period without the authority of a magistrate."

Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It
says, "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."

Section 76 contains a similar provision for a person arrested under a warrant. It says, "The police
officer or other person executing a warrant of arrest shall (subject to the provisions of section 71
as to security) without unnecessary delay bring the person arrested before the court before which
he is required by law to produce such person. Provided that such delay shall not, in any case,
exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest
to the Magistrate's court."

Thus, it can be see that it is a very important right that is meant to prevent abuse of police power
and to prevent the use of a police station as a prison. It prevents arrest merely for the purpose of
extracting confessions. The arrested person gets to be heard by a judicial authority that is
independent of the police.

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

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

Constitutional Perspective on Art 22(2) - On the face of it, this article seems to be applicable
on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC
observed that it applies only to cases of arrests without warrant because in case of an arrest with
warrant, the judicial mind has already been applied while issuing the warrant. So further
safeguard is not required. This decision has been widely criticized. In any case, the proviso to
Section 76 unmistakably provides that a person arrested under a warrant must be produced
before a magistrate within 24 hours.

4. Right to consult Legal Practitioner - Art 22 (1) - For conducting a fair trial it is absolutely
necessary that the accused person is able to consult with a legal practitioner whom he trusts.
Second part of Article 22(1) gives this fundamental right to an arrested person. It says that no
person who is arrested shall be denied the right to consult, and to be defended by, a legal
practitioner of his choice. However, this does not mean that the State must provide a legal
practitioner of the person's choice. It is up to the arrested person to contact and appoint a such a
legal practitioner. The State's responsibility is only to ensure that he is not prevented from doing
so.

The same right is also provide by CrPC under Section 303, which says, "Any person accused of
offence before a Criminal Court or against whom proceedings are instituted under this Code,
may of right be defended by a pleader of his choice."

5. Right to free legal aid - Art 21 and Section 304 - A person who does not have the means to
hire a legal practitioner is unable to defend himself appropriately. This casts a cloud on the
fairness of the trial. Therefore, Section 304 provides that where, in a trial before the Court of
Session, the accused is not represented by a pleader, and where appears to the Court that the
accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his
defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court
has also held that access to a legal practitioner is implicit in Article 21, which gives fundamental
right to life and liberty. The state is under constitutional mandate to provide free legal aid to an
indigent accused person and this constitutional obligation arises not only when the trial is
commenced but also when the person is first produced before a magistrate and also when he is
remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh 1986,
SCC, SC has held that non-compliance of this requirement or failure to inform the accused of
this right would vitiate the trial entailing setting aside of the conviction and sentence. The right
of an accused person to consult his lawyer begins from the moment of his arrest. The
consultation with the lawyer may be within the presence of a police officer but not within the
police officer's hearing. SC also held that it is the duty on all courts and magistrates to inform the
indegent person about his right to get free legal aid.

6. Right to be informed about the right to inform of his arrest to his relative or friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in
Joginder Kumar vs State of UP 1994, formulated the rules that make it mandatory on the police
officer to inform one friend, relative, or any other person of the accused person's choice, about
his arrest. These rules were later incorporated in CrPC under section 50 A in 2005.

Section 50 A (1) provides that once the arrested person is brought to the police station, the police
officer must inform a relative or a friend, or any other person of the arrested person's choice,
about his arrest. He must also tell the place where the arrested person has been kept. This is a
very important step in ensuring justice with the arrested person because this allows the arrested
person and his well wishers to take appropriate legal steps to secure his release. However, all this
will amount to nothing if the arrested person does not even know about this very critical right.
Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this
right. Further, as per Section 50 A (3) he must note down the name and address of the person
who was informed about the arrest. To make sure that there is no violation of this right, section
50 A (4) makes it a duty of the magistrate to verify that the provisions of this section were
complied with.

7. Right to be examined by a medical practitioner - While Section 53 allows a police officer

to get the accused examined by a registered medical practitioner, Section 54(1) gives the accused
a right to get himself examined by a registered medical practitioner. Section 54 (1) says thus,
"When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he
is produced before a Magistrate or at any time during, the period of his detention in custody that
the examination of his body will afford evidence which will disprove the commission by him of
any offence or which Magistrate shall, if requested by the arrested person so to do direct the
examination of' the body of such person by a registered medical practitioner unless the
Magistrate considers that the request is made for the purpose of vexation or delay or for
defeating the ends of Justice". While Section 53 is meant to aid the police in investigation,
Section 54(1) is meant for the accused to prove his innocence. This right can also be used by the
accused to prove that he was subjected to physical injury.

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

However, it is not clear in the section whether the medical person must be of the choice of the
accused or shall be appointed by the magistrate. The section is also silent on who will bear the
expense of the examination.

Non compliance to this important provision prompted Delhi High court to issue directions that
make it obligatory for the magistrates to ask the arrested person as to whether he has any
complaint of torture or maltreatment in police custody.

Consequences of non-compliance with the provisions relating to arrest -

In general, non-compliance does not void a trial. Just because any provision relating to arrest was
not complied with does not affect whether the accused is guilty or not. However, the violation
will be material in case the accused is prosecuted on the charge of resistance to or escape from
lawful custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can
exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury caused
due to it. Also, a person who is making an illegal arrest is guilty of wrongful confinement and
also exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is
illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person
who does not have an authority to arrest, arrests a person with full knowledge that the arrest is
illegal, can be prosecuted under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.

It is important to note that the provisions regarding arrest cannot be by-passed by alleging that
there was no arrest but only an informal detention. Informal detention or restraint of any kind by
the police is not authorized by law.

Q. What provisions are given in CrPC for compelling

appearance in courts? What do you know about Summons
in this context? Describe the procedure for issue and service
of a Summons. How can a Summons be served on a govt.
employee or outside local limits?
Processes for compelling appearance
To meet the ends of justice, it is critical to produce the accused and other witness or related
parties before the court whenever needed. If the accused is found guilty at the conclusion of the
trial, he must be present in person to receive the sentence. Also, his presence is necessary if
imprisonment is to be enforced. Further, the supremacy of the law will be questionable if there is
no formal process to bring the required persons before the court. For this reason, Chapter VI
(Sections 61 to 90) of CrPC provides three ways for compelling the appearance of any person
who is required to be present in the court, in the court -

1. Summons,

2. Warrant, and

3. Proclamation for person absconding

While Summons is an order of the court to the person to appear before it, Warrant is an order of
the court given to a third person to bring the person who is required to be present in the court, in
the court. Which method is to be used in a particular situation depends on the judicial officer,
who is guided by the provisions of this code. The third method is used when the person has
absconded or is in any other way avoiding arrest, in which case the Court may publish a written
proclamation requiring him to appear at a specified place and at a specified time not less than
thirty days from the date of publishing such proclamation

The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant
case if the offence is punishable by death, imprisonment for life or imprisonment for more than
two years. A summons case is a case that is not a warrant case. Thus, the basis of classification
is the seriousness of the offence. Since summons case contains a lesser sentence, there is less
probability of the accused violating the court order. Therefore, generally, a summons is issued for
a summons case and a warrant is issued for a warrant case. However, when a summons is not
productive in making a person appear before the court, the count may issue a warrant to a police
officer or any other person to forcibly produce the required person before the court.

Summons
A Summons is a process issued by a Court, calling upon a person to appear before a Magistrate.
It is used for the purpose of notifying an individual of his legal obligation to appear before the
Magistrate as a response to a violation of the law. It is addressed to a defendant in a legal
proceeding. Typically, the summons will announce to the person to whom it is directed that a
legal proceeding has been started against that person, and that a file has been started in the court
records. The summons announces a date and time on which the person must appear in court.

A person who is summoned is legally bound to appear before the court on the given date and
time. Willful disobedience is liable to be punished under Section 174 of IPC. It is a ground for
contempt of court.

As per Section 61, every summons issued by a Court under this Code shall be in writing and in
duplicate. It must be signed by the presiding officer of the Court or by such other officer as the
High Court may, from time to time, by rule direct. It must also bear the seal of the Court.

Procedure for issuing a Summons

When a request in appropriate format is made to the court for compelling the appearance for a
person, the court either rejects the request or issues a Summons. As per Section 204, if in the
opinion of the magistrate taking cognizance of the offence, there is sufficient ground for
proceeding, he shall issue a summons if it is a summons case. If it is a warrants case, he may
issue a warrant or a summons as he thinks fit. However, Section 87, empowers a magistrate to
issue a warrant even if the case is a summons case if he has reason to believe that the summons
will be disobeyed. He must record his reasons for this action.

The summons should contain adequate particulars such as the date, time, and place, of the
offence charged. It should also contain the date, time, and place where the summoned person is
supposed to appear. The standard format of a summons is given in Form 1 of Second schedule.

As per Section 205, a magistrate issuing the summons may permit the accused to appear by his
lawyer if he sees reason to do so.

Procedure for serving a Summons

CrPC describes the procedures for serving a summons on various categories of individuals - a
person, a corporate body, a government servant, and a person residing outside the jurisdiction of
the court.

Section 62 describes the procedure for serving a Summons on a person as follows -

(1) Every summons shall be served by a police officer, or subject to such rules as the State
Government may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by
delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer,
sign a receipt therefore on the back of the other duplicate.

In case of Danatram Karsanal, 1968, it was held that summons should not only be shown but a
copy of it be left, exhibited, delivered, or tendered, to the person summoned. In a case, where a
copy was tendered to the person, it was held that the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be summoned is
employed abroad, the court can send summons to the concerned embassy official for the purpose
of service since the embassy official is also a public servant. Merely affixing the summon on a
conspicuous part of the house will not amount to service of the summon.

Service of summons on corporate bodies and societies (Section 63) -

Service of a summons on a corporation may be effected by serving it on the secretary, local
manager or other principle officer of the corporation, or by letter sent by registered post,
addressed to the chief officer of the corporation in India, in which case the service shall be
deemed to have been effected when the letter would arrive in ordinary course of post. In this
section, "corporation" means an incorporated company or other body corporate and includes a
society registered under the Societies Registration Act, 1860.

In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held that a
Branch Manager is a local manager and if he has been served the service shall be deemed to have
been effected on the company itself.

Service when persons summoned cannot be found (Section 64) -

Where the person summoned cannot, by the exercise of due diligence, be found, the summons
may be served by leaving one of the duplicates for him with some adult male member of his
family residing with him, and the person with whom the summons is so left shall, if so required
by the serving officer, sign a receipt therefor on the back of the other duplicate. A servant is not
considered to be a member of the family within the meaning of this section.

Procedure when service cannot be effected as before provided (Section 65) -

If service cannot by the exercise of due diligence be effected as provided in section 62, section
63, or section 64, the serving officer shall affix one of the duplicates of the summons to some
conspicuous part of the house or homestead in which the person summoned ordinarily resides;
and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the
summons has been duly served or order fresh service in such manner as it considers proper.

The service of summons on a witness can also be done by post. As per Section 69 -
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing
a summons to a witness may, in addition to and simultaneously with the issue of such summons,
direct a copy of the summons to be served by registered post addressed to the witness at the place
where he ordinarily resides or carries on business or personally works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement
purporting to be made by a postal employee that the witness refused to take delivery of the
summons has been received, the Court issuing the summons may declare that the summons has
been duly served.

Service of summons on a Govt. employee (Section 66) -

Section 66 details the procedure for serving a summons on a Government employee as follows -
(1) Where the person summoned is in the active service of the Government, the Court issuing the
summons shall ordinarily sent it in duplicate to the head of the office in which such person is
employed; and such head shall thereupon cause the summons to be served in the manner
provided by section 62, and shall return it to the Court under his signature with the endorsement
required by that section.
(2) Such signature shall be evidence of due service.

Service of summons outside local limits (Section 67) -

When a Court desires that a summons issued by it shall be served at any place outside its local
jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose
local jurisdiction the person summoned resides, or is believed to be there, served.

Q. What do you understand by Warrant of

Arrest? Describe the procedure for issue and
execution of a Warrant of Arrest. When can a
court issue a warrant in a case in which it is
empowered to issue a summons? When can a
warrant be issued for recovery of a fine?
Introduction
To meet the ends of justice, it is critical to produce the accused and other witness or
related parties before the court whenever needed. If the accused is found guilty at
the conclusion of the trial, he must be present in person to receive the sentence.
Also, his presence is necessary if imprisonment is to be enforced. Further, the
supremacy of the law will be questionable if there is no formal process to bring the
required persons before the court. For this reason, Chapter VI (Sections 61 to
90) of CrPC provides two ways for compelling the appearance of any person who is
required to be present in the court, in the court - Summons and Warrant. While
Summons is an order of the court to the person to appear before it, Warrant is an
order of the court given to a third person to bring the person who is required to be
present in the court, in the court. Which method is to be used in a particular
situation depends on the judicial officer, who is guided by the provisions of this
code.

The code classifies all criminal cases into summons cases and warrant cases. A case
is a warrant case if the offence is punishable by death, imprisonment for life or
imprisonment for more than two years. A summons case is a case that is not a
warrant case. Thus, The basis of classification is the seriousness of the offence.
Since summons case contains a lesser sentence, there is less probability of the
accused violating the court order. Therefore, generally, a summons is issued for a
summons case and a warrant is issued for a warrant case. However, when a
Summons is not productive in making a person appear before the court, the count
may issue a warrant to a police officer or any other person to forcibly produce the
required person before the court.

Warrant of Arrest
A warrant of arrest is a written authority given by a competent magistrate for the
arrest of a person. It is a more drastic step than the issue of a summons. It is
addressed to a person, usually a police officer, to apprehend and produce the
offender in front of the court.
Essential Elements of a valid warrant -
1. The warrant must clearly mention the name and other particulars of the person to
be arrested. As per Section 70(1), every warrant of arrest shall be in writing. It
must be signed by the presiding officer of the court and must bear the seal of the
court. As per section 70(2), a warrant remains in force until it is canceled or is
executed. Normally, Form 2 of Second schedule is used to write a warrant.
2. It must show the person to whom the authority to arrest has been given. As per
Section 72, a warrant is normally directed to one or more police officers but, if
necessary, the court may direct it to any other person or persons. Further, section
73 provides that a magistrate may direct a warrant to any person within his
jurisdiction for the arrest of any escaped convict, proclaimed offender, or of any
person who is accused of a non-bailable offence and is evading arrest.
3. It may include a direction that if the person arrested under the warrant executes
a bond and gives security for his attendance in court, he shall be released. Warrant
with such a direction is called as bailable warrant of arrest.
4. It must clearly specify the offence.

Procedure for issuing a Warrant

When a request in appropriate format is made to the court for compelling the
appearance for a person, the court either rejects the request or issues a Warrant. As
per Section 204, if in the opinion of the magistrate taking cognizance of the
offence, there is sufficient ground for proceeding, and if the cases is a warrant case,
he may issue a warrant or if he thinks fit, he may issue a summons.
Further, Section 87, empowers a magistrate to issue a warrant even if the case is a
summons case if he has reason to believe that the summons will be disobeyed. He
must record his reasons for this action.

Procedure for executing a Warrant

As per section 75, A warrant can be executed by showing the substance of the
warrant to the person being arrest. If required, the warrant must be shown to the
person arrested. Section 76 mandates that the person executing the warrant must
produce the arrested person before the magistrate without unnecessary delay and
within 24 hours excluding the time taken for travel from the place of arrest to the
magistrate.
As per section 77, a warrant may be executed anywhere in India. Section 78
specifies that if a warrant is to be executed outside the local jurisdiction of the court
issuing it, such court may send it to the Executive Magistrate or District
Superintendent of Police or Commissioner of Police within the local limits of whose
jurisdiction it is to be executed instead of directing it to the police officer within the
jurisdiction of the issuing court.

Section 79 specifies the procedure for executing a warrant outside the local
jurisdiction of the issuing court as follows -
(1) When a warrant directed to a police officer is to be executed beyond the local
jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement
either to an Executive Magistrate or to a police officer not below the rank of an
officer in charge of a police station, within the local limits of whose jurisdiction the
warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such
endorsement shall be sufficient authority to the police officer to whom the warrant
is directed to execute the same, and the local police shall, if so required, assist such
officer in executing such warrant.
(3)Whenever there is reason to believe that the delay occasioned by obtaining the
endorsement of the Magistrate or police officer within whose local jurisdiction the
warrant is to be executed will prevent such execution, the police officer to whom it
is directed may execute the same without such endorsement in any place beyond
the local jurisdiction of the Court which issued it.

When can a court issue a Warrant in a case in which it is

empowered to issue summons
As per Section 87 a court may issue a warrant even in a case in which it is
empowered only to issue a summons. A court can issue a warrant either before
issuing a summons or even after issuing a summons. It may do so if it has reason to
believe that the person has absconded or that the person will not obey the
summons. Further, a court may issue a warrant if the summons was duly served and
still the person fails to appear before it at the required date and time without any
reasonable excuse. The court must record its reasons to do so.

It must be noted that Section 204 empowers the court to issue a summons even
for a warrants case if it believes that a summons is sufficient to enforce the
appearance of the person before it, while Section 87 empowers the court to issue a
warrant even in a summons cases, if reasonable causes exist. In general, a warrant
ought not to be issued where a summons can serve the purpose and care should be
exercised by the court to satisfy itself that upon the materials present before it, it
was necessary to issue a warrant. In Anoop Singh vs Cheelu AIR 1957, it was
held that this applies to an accused as well as a witness. But where the court has no
power to issue a summons, it cannot issue a warrant under this section. In P K
Baidya vs Chaya Rani AIR 1995, it was held that when a witness avoids his
appearance in spite of the summons being appropriately served, court can take
steps for securing his presence under this section.

When can a warrant be issued for recovery of a fine

Section 421 - Warrant for levy of fine-
(1) When an offender has been sentenced to pay a fine, the Court passing the
sentence may take action for the recovery of the fine in either or both of the
following ways, that is to say, it may,-
(a) issue a warrant for the levy of the amount by attachment and sale of any
movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorizing him to realize the
amount as arrears of land revenue from the movable or immovable property, or
both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the fine, the
offender shall be imprisoned, and if such offender has undergone the whole of such
imprisonment in default, no Court shall issue such warrant unless, for special
reasons to be recorded in writing, it considers it necessary so to do, or unless, it has
made an order for the payment of expenses or compensation out of the fine under
Section 357.
(2) The State Government may make rules regulating the manner in which warrants
under Clause (a) of sub-section (1) are to be executed, and for the summary
determination of any claims made by any person other than the offender in respect
of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-
section (1), the Collector shall realize the amount in accordance with the law
relating to recovery of arrears of land revenue, as if such warrant were a certificate
issued under such law:

Provided that no such warrant shall be executed by the arrest or detention in prison
of the offender.

Q. When is a person declared Absconder?

Explain the procedure for publication of
proclamation for persons absconding with
reference to Sections 82, 83, 84, 85.
When a person is hiding from his place of residence so as to frustrate the execution
of a warrant of arrest, he is said have absconded. A person may hide within his
residence or outside away from his residence. If a person comes to know about the
issuance of a process against him or if he anticipates such a process and hides or
quits the country, he is said to have absconded. In Kartary vs State of UP, 1994,
All HC held that when in order to evade the process of law a person is hiding from
(or even in) his place of residence, he is said to abscond. A person is not said to
abscond merely when he has gone to a distant place before the issuance of a
warrant. Similarly, it is necessary that the person is hiding himself and it is not
sufficient that an inspector is unable to find him.

Normally, if a person fails to appear before the court even after being served a
summons, the court issues a warrant of arrest. However, if the person absconds to
avoid the arrest, the drastic step of Proclamation for Persons Absconding needs to
be taken, which is described in Section 82..
Proclamation for person absconding (Section 82(1)) -
If the court has reason to believe that a person has absconded to avoid the
execution of his arrest warrant, the court may publish a written proclamation
requiring such person to appear before it at the specified place and time. The date
and time of appearance must not be less than thirty days from the date of
proclamation.

Procedure for Publication of the Proclamation (Section

82(2)) -
As per section 82(2), the proclamation must be read in some conspicious place of
the town or village in which the person resides. It shall also be affixed to some
conspicuous part of the house in which the person resides or to some conspicuous
place of the town or village. Further, a copy of the same must also be affixed to
some conspicious part of the court house. The court may also direct a copy of the
proclamation to be published in a daily newspaper circulating in the place is which
such person ordinarily resides.

The terms of Section 82 are mandatory and a proclamation cannot be issued

without first issuing a warrant of arrest. Therefore, as held in Bishnudayal vs
Emperor AIR 1943, if there is no authority to arrest, the issuing of proclamation
would be illegal.

Consequences of Proclamation
Section 83 - Attachment of property of person absconding -
The publication of proclamation in accordance with the procedure described in
section 82, is the last of the steps taken to produce a person before the court. If the
person still fails to appear before the court, Section 83 empowers the court to
attach the property of the person who is absconding at any time. The court must
record the reasons for doing so. The property can be movable or immovable. The
property can be any property within the district or even outside the district of the
District magistrate of the other district endorses the proclamation.

Further, if, at the time of making proclamation, the court is satisfied that the person
is about to dispose of his property or is about to move his property out of the
jurisdiction of the court, it may order the attachment of the property simultaneously
with the issue of proclamation.

If the property to be attached is a debt or is movable property, the attachment is

done either by seizure, by the appointment of a receiver, by an order ins writing
prohibiting the deliver of sch property to the proclaimed person or to anyone on his
behalf. Court can also use any one or more of these modes as it thinks fit. If the
property is immovable, it can be attached by taking possession, by appointing a
receiver, by an order prohibiting the payment of rent to the proclaimed persons or
by any or all of these methods.

Section 84 provides a means to protect the interests of any person other than the
proclaimed person in the attached property. Any such person who has an interest in
the attached property can claim it within six months from the date of attachment on
the ground that the claimant has an interest in the property and the interest is not
liable to be attached under section 83. The claim shall be inquired into and may be
allowed or disallowed in whole or in part.

(1) If any claim is preferred to, or objection made to the attachment of, any property
attached under section 83, within six months from the date of such attachment, by
any person other than the proclaimed person, on the ground that the claimant or
objector has an interest in such property, and that such interest is not liable to
attachment under section 83, the claim or objection shall be inquired into, and may
be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by
this sub-section may, in the event of the death of the claimant or objector, be
continued by his legal representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the
Court by which the order of attachment is issued, or, if the claim or objection is in
respect of property attached under an order endorsed under sub-section (2) of
section 83, in the Court of the Chief Judicial Magistrate of the district in which the
attachment is made.

(3) Every such claim or objection shall be inquired into by the Court in which it is
preferred or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he
may make it over for disposal to any Magistrate subordinate to him.

(4) Any person whose claim or objection has been disallowed in whole or in part by
an order under sub-section (1) may, within a period of one year from the date of
such order, institute a suit to establish the right which he claims in respect of the
property in dispute; but subject to the result of such suit, if any, the order shall be
conclusive.

Section 85 - Release, Sale, and restoration of the property -

(1) If the proclaimed person appears within the time specified in the proclamation,
the Court shall make an order releasing the property from the attachment.

(2) If the proclaimed person does not appear within the time specified in the
proclamation, the property under the attachment shall be at the disposal of the
State Government; but it shall not be sold until the expiration of six months from
the date of the attachment and until any claim preferred or objection made under
section 84 has been disposed of under that section, unless it is subject to speedy
and natural decay, or the Court considers that the sale would be for the benefit of
the owner; in either of which cases the Court may cause it to be sold whenever it
thinks fit.

(3) If, within two years from the date of the attachment, any person whose property
is or has been at the disposal of the State Government, under sub-section (2),
appears voluntarily or is apprehended and brought before the Court by whose order
the property was attached, or the Court to which such Court is subordinate, and
proves to the satisfaction of such Court that he did not abscond or conceal himself
for the purpose of avoiding execution of the warrant, and that he had not such
notice of the proclamation as to enable him to attend within the time specified
therein such property, or, if the same has been sold, the net proceeds of the sale,
or, if part only thereof has been sold, the net proceeds of the sale, and the residue
of the property, shall, after satisfying therefrom all costs incurred in consequence of
the attachment, be delivered to him.

Q. What is an offence?
General Concept of Offence
A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law
is an offence. In general, such act which causes a violation of rights of others or cause harm to
others and is so dangerous that is also affects the society at large is designated as offence by the
legislature through the acts of the parliament. Section 2(n) of CrPC defines an offence as follows
-
Section 2(n) - "Offence" means any act or omission made punishable by any law for the time
being in force and includes any act in respect of which a complaint may be made under section
20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act would
be an offence if committed in India.

It is important to note that an act is not offence unless it is clearly defined as an offence by any
piece of legislature. Thus, to be an offence, the legislature must designate it to be an offence.
Several Acts and Legislations defines such acts which constitute offences. The main among them
is the Indian Penal Code. It defines acts ranging from theft and murder to fraud and criminal
breach of trust and makes them offences. Examples of other acts which defines offences are
Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic
Substances Act, Environmental Protection Act. These Acts defines certain activities related to the
focus of the Act as offences. Some Acts such as Prevention of Corruption Act and Narcotic
Drugs and Psychotropic Substances Act also specify the mode of trial for the offences that they
define, while some specify that trial for their offences will be held as per the provisions of Cr PC.

Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears
before the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he
must be made available to serve his sentence. However, if it is reasonably evident that the person
charged with an offence can be made available for the above mentioned purposes without
keeping him imprisoned, then it is unfair to keep him in custody until his guilt is proven. It is a
violation of a person's fundamental right to restrict the person's liberty without any just cause.

Bail is one such mechanism which is used to ensure the presence of an accused whenever
required by the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in
which a person makes a written undertaking to the court. A person who is in custody, because he
or she has been charged with an offence or is involved in pending criminal proceedings, may
apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he
will be present every time the matter is in court until the proceedings are finished, will comply
with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a
specified sum of money if the person fails, without proper excuse, to comply with any term or
condition of the agreement. Two authorities that may grant bail are the police and the courts. A
person may be required to provide a security as well. But it is not necessary. A person may also
be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a
Bail covers both release on one's own bond with or without surety.

Q. What is a Bailable and Non-Bailable offence?

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable
offence is an offence of relatively less severity and for which the accused has a right to be
released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot
demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence
as well as Non-Bailable Offence as follows -

Section 2 (a) - Bailable offence" means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the time being in force: and "non-
bailable offence" means any other offence.

Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply
makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These
offences include offences such as obstructing a public servant from discharging his duties,
bribing an election official, and providing false evidence. Non-bailable offences include offences
such as murder, threatening a person to give false evidence, and failure by a person released on
bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable
offences shows that bailable offences are of relatively less severity.

Q. When and When not can Bail be granted?

As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the
court whenever required. However, granting bail is not advisable in all cases. For example, a
murder, if let loose, may try to intimidate the witnesses, or he may even abscond altogether. This
is very bad for the society in general and reflects bad on the justice system. Thus, various rules
and procedures have been formulated to make sure that only the deserving are released on bail.
They try to achieve a balance between the rights of the accused and the protection of the society
and effectiveness of the justice system.

The working of the bail system in India was highlighted in the case of Hussainara Khaton vs
Home Secretory, 1980. It came to the courts attention for the first time that thousands of people
were rotting in jails for 3 to 10 years for petty crimes which do not have punishment more than 6
months to an year. This was because they were unable to pay bond money for bail and the courts
were too backlogged to hear their cases. In this respect, J Bhagwati observed that the courts must
abandon the antiquated concept under which pretrial release is ordered only against bail with
sureties.
Thus, in general, the intention of the justice system is to give bail and not jail before the accused
is convicted. It is said that since the accused is presumed innocence, he must be released so that
he can fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an
exception.

Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or
non-bailable offence -

Bail for Bailable offences -

A person accused of a bailable offence can demand to be released on bail as a matter of right.
This is provided for by Section 436.
Section 436 - When any person other than a person accused of a non-bailable offence is arrested
or detained without warrant by an officer in charge of a police station, or appears or is brought
before a court, and is prepared at, any, time while-in the custody of such officer or at any stage of
the proceeding before such court to give bail, such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person,
discharge him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his
right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1)
specifically provides that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide any
bail amount, must be released. If a person is unable to provide bail amount for a week, then he
can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death
is one of the punishments specified for the offence.

Bail for Non-Bailable offences -

When a person is detained for a non-bailable offence, he cannot demand to be released on bail as
a matter of right. He can, however, request the court to grant bail. The provisions in this case are
governed by Section 437/

Section 437 - When any person accused of, or suspected of, the commission of any non-bailable
offence is arrested or detained without warrant by an officer-in-charge of a police station or
appears or is brought before a Court other than the High Court or Court of session, he may be
released on bail. If it appears to such officer or Court at any stage of the investigation, inquiry or
trial, as the case may be, that there are no reasonable grounds for believing that the accused has
committed a non-bailable offence, but there are sufficient grounds for further inquiry into his
guilt, the accused shall be released on bail, or, at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance. A police officer or the court may
also release a person from custody if he feels that there are any special reasons. But he must
record his reasons in writing.
Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that
must be given while giving bail in case of non-bailable offences. These are -

1. the nature of the crime

2. the nature of the charge, the evidence, and possible punishment

3. the possibility of interference with justice

4. the antecedents of the applicant

5. furtherance of the interest of justice

6. the intermediate acquittal of the accused

7. socio-geographical circumstances

8. prospective misconduct of the accused

9. the period already spent in prison

10. protective and curative conditions on which bail might be granted.

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.
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.

If the investigation is not done within 24 hours, the arrested person must be bought before the
court and if required, the police must make a case to extend the detention. The court may extend
the detention by 15 days. However, the detention cannot extend more than 60 days (or 90 days, if
the offence is punishable by death or imprisonment for life), after which the accused must be
released on bail. This provision applies for bailable as well as non-bailable offence.
Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death
is one of the punishments specified for the offence.

Conditions on Bail
As per Section 437, if any person accused of an offence punishable with 7 yrs or more of
imprisonment is released on bail, the court may impose any condition on the bail to ensure that
the person will attend the court in accordance with the bond executed by him, or to ensure that
the person will not commit a similar offence or otherwise in interest of justice.

Special Powers of Hight Court and Court of Session regarding Bail

Section 439 gives special powers to High Court and Court of Session regarding bails. These are
as follows -
1. A High Court or Court of Sessions may direct that any person accused of an offence and in
custody be released on bail. It may also impose any condition which it considers necessary. It
may set aside or modify any condition imposed by a Magistrate when releasing any person on
bail.
2. The High Court or the Court of Sessions shall, before granting bail to a person who is accused
of an offence which is triable exclusively by the Court of Sessions or which, though not so
triable, is punishable with imprisonment for life, give notice of the application for bail to the
Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not
practicable to give such notice.
3. A High Court or Court of Sessions may direct that any person who has been released on bail
under this chapter be arrested and commit him to custody.

When can bail be denied -

1. As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the
court may refuse to release him on bail, on a subsequent occasion in the same case. He can also
be asked to pay penalty for not appearing before the court as per the conditions of the previous
bail.
2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary
power to the police and and court. However, this power is not totally without any restraint.
Section 437 disallows bail to be given in the following conditions.

1. if there appears reasonable grounds for believing that the person has been guilty of an
offence punishable with death or imprisonment for life;

2. if such offence is a cognizable offence and the person has been previously convicted of
an offence punishable with death, imprisonment for life or imprisonment for seven years
or more, or he had been previously convicted on two or more occasions of a non-bailable
and cognizable offence. The person may, however, be released on bail if such person is
under the age of sixteen years or is a woman or is sick or infirm.

3. Persons accused of Dowry Death -

Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib's
case (AIR 1958) held the absence of such provision as a lacuna and recognized the power of
High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which has
released a person on bail under section 437(1) or 437(2), may direct that such person be arrested
and commit him to custody. This basically cancels the bail. However, it must be noted that only
the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be
canceled by a court under this section. To do so the special power of High Court or Court of
Session under Section 439 has to be invoked. The new Section 439 explicitly gives the power to
High Court and Court of Session to direct that any person who has been released on bail be
arrested and to commit him to custody.

The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is
not necessary that some new events should take place subsequent to the offender's release on bail
for the Sessions Judge to cancel his bail, however, the court usually bases its decision of
cancellation on subsequent events. For example, in the case of Surendra Singh vs State of
Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds -
1. When the accused was found tampering with the evidence either during the investigation or
during the trial
2. when the accused on bail commits similar offence or any heinous offence during the period of
bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem in
the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger

Appeal Provision for Bail

It has been held that an order granting bail is an interlocutory order and so it cannot be
challenged under the revisional jurisdiction of the Session Court or High Court. In general, there
is no right of appeal against the decision of refusing the bail. However, a person can alway file
for Special Leave Petition to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to
special courts.

Q. What do you understand by Anticipatory bail? When is it

granted and when it may be refused? What is the difference
between the general provisions of anticipatory bail and
regular bail?
It has been observed that many cases are instigated against a person just because of political
motivation or personal vendetta. They lack enough evidence and are meant to harass a person by
getting him arrested. When a person apprehends such situation he may apply to Court of Session
or the High Court under Section 438 for a direction that he be released on bail upon his arrest.
This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of an arrest.
Anticipatory bail is technically an incorrect term because a bail can be given only if a person has
already been arrested. In this case, the court directs that the person be released on bail as soon as
he is arrested. Thus, it is a direction to provide bail and not the bail itself.
Section 438 - When any person has reason to believe that he may be arrested on an accusation of
having committed a non-bailable offence, he may apply to the High Court or the Court of
Sessions for a direction under this section, and that Court may, if it thinks fit, direct that in the
event of such arrest, he shall be released on bail.

While applying under this section, the person has to explain the circumstances because which he
believes he might be arrested. Mere hunch or fear is not enough. He must also provide such
evidence that shows there is a reasonable probability that he will be arrested on accusation of a
non-bailable offence. Further, the direction under this section can be given only upon a specific
offence. A generic direction or a blanket order to be released whenever the applicant is arrested
and on whatever offence is not allowed.

In granting such a direction the court takes into account the following considerations -
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been
imprisoned upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant
by having him arrested.

The order may also include conditions such as the person shall make himself available for
interrogation by a police officer whenever required, the person shall not leave India, the person
shall not make any inducement, threat, or promise to any person acquainted with the facts of the
case, or any other condition that the court may think fit.

It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to
Court of Session and High Court. Thus, a person can approach either of the courts to get this
relief.

As per Section 438 A, the court may also grant an interim order and in that case an opportunity is
given to the public prosecutor present his arguments on why the applicant should not be given
bail. Further, as per Section 438 B, if the court finds it necessary, it may require the applicant to
be present personally at the time of final determination of the interim order.

A bail under the direction of this section is equivalent to the bail given under Section 437(1) and
so it is applicable until the conclusion of the trial.

Refusal of Anticipatory Bail

Although, there is no specific provision that prohibits granting anticipatory bail, there are certain
situations where such bail is normally not granted. These are -
1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes
Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must
seek remedy under Section 437.

Some high courts have held that the grounds mentioned in Section 437 for denying regular bail
are applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a
punishment of death or life imprisonment will not be given anticipatory bail.

In general, the court has a wide discretion in granting anticipatory bail. So the court may deny
this relief if it feels that it is not in the interest of justice.

Cancellation of Anticipatory Bail

There is no specific provision that allows a court to cancel the order of anticipatory bail.
However, in several cases it has been held that when Section 438 permits granting anticipatory
bail, it is implicit that the court making such order is entitled upon appropriate considerations to
cancel or recall the order.

Q. Explain general provisions concerning

bond [Sec 441 - 450]. Explain the procedure
that is followed when a bond is forfeited
[Section 446].
Bond
As per Section 441, before any person is released on bail or is released on his own
bond, a bond for an appropriate sum of money shall be executed by the person and
if required by one or more sureties, stating that the person will appear before the
court at the given date and time mentioned in the bond.
In other words, a bonds provides a kind of monetary guarantee that the person
being released will appear before the court as and when required.

General Provisions of Bonds - ( ABNRI DDFFIMAL)

Section 440 - Amount of bond should not be excessive. High Court and Court of
Session have power to reduce the amount.
Section 441 - Court may accept affidavits in proof of fitness of sureties or it may
also hold an inquiry to determine the sufficiency of sureties.
Section 441 A - Every surety must state the number of person he is currently
standing surety for.
Section 442 - As soon as the bond is executed, the person should be released.
Section 443 - If through mistake, fraud or otherwise, insufficient sureties have been
accepted or if they afterwards become insufficient, the court may issue a warrant of
arrest and may ask him to provide fresh sureties.
Section 444 - A surety can apply to be discharged from the bond, in which case, the
person for whom the surety is given will be arrested and asked to provide new
surety.
Section 445 - A court may permit a person to deposit money instead of executing a
bond with or without sureties.
Section 446 - If a bond is forfeited, the sureties may be asked to pay the penalty.
Section 446 A - When a bond for appearance of a person is forfeited for a breach of
condition, the bond executed by the person and the sureties shall stand canceled.
Section 447 - If a surety becomes insolvent or dies, the court may ask for new
sureties.
Section 448 - If the person from whom bond is required is minor the court may
accept a bond executed by sureties only.
Section 449 - Appeal from orders under Section 446 will lie to Sessions Judge if the
order is made by a magistrate and to High Court if the order is made by Sessions
Judge.
Section 450 - The High Court or Court of Session may direct any magistrate to levy
the amount due on a bond for appearance or attendance at such High Court or
Session Court.

Procedure on forfeiture of a Bond

If the court is satisfied that the bond has been forfeited -
1. It may ask any person bound by the bond to pay penalty or to show cause why
it should not be paid.
2. If sufficient cause is not shown and penalty is not paid, the court may proceed
to recover the same as if the penalty was a fine imposed by the court.
3. If the penalty cannot be recovered, the person bound as surety is liable to be
imprisoned in civil jail for up to 6 months
4. The court may remit any portion of the penalty and require the payment in
part. It must record its reasons for doing so.
5. If a surety to a bond dies, his estate shall be discharged from all liability in
respect of the bond.

Q. What is a Charge? What are the contents

of a Charge? Discuss the effects of errors in a
Charge? How is a Charge different from FIR?

Charge
As per Wharton's law Lexicon, Charge means to prefer an acusation against some
one. To charge a person means to accuse that person of some offence. However,
charge is not a mere accusation made by a complainant or an informant. A charge is
a formal recognition of concrete accusations by a magistrate or a court based upon
a complaint or information against the accused. A charge is drawn up by a court
only when the court is satisfied by the prima facie evidence against the
accused. The basic idea behind a charge is to make the accused understand what
exactly he is accused of so that he can defend himself. A charge gives the accused
accurate and precise information about the accusation against him.A charge is
written in the language of the court and the fact that the charge is made means
that every legal condition required by law to constitute the offence charged is
fulfilled in the particular case.
It is a basic principle of law that when a court summons a person to face a charge,
the court must be equipped with at least prima facie material to show that the
person being charged is guilty of the offences contained in the charge. Thus, while
framing a charge, the court must apply its mind to the evidence presented to it and
must frame a charge only if it is satisfied that a case exists against the accused. In
the case of State vs Ajit Kumar Saha 1988, the material on record did not show
a prima facie case but the charges were still framed by the magistrate. Since there
was no application of mind by the magistrate, the order framing the charges was
set aside by the High Court.

According to Section 2(b) of Cr P C, when a charge contains more than one heads,
the head of charges is also a charge.

Contents of a Charge
Section 211 specifies the contents of a Charge as follows [ONDSLP] -
(1) Every charge under this Code shall state the offence with which the accused is
charged.
(2) If the law that creates the offence gives it any specific name, the offence may be
described in the charge by that name only.
(3) If the law that creates the offence does not give it any specific name so much of
the definition of the offence must be stated as to give the accused notice of the
matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been
committed shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal
condition required by law to constitute the offence charged was fulfilled in the
particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused, having been previously convicted of any offence, is liable, by
reason of such previous conviction, to enhanced punishment, or to punishment of a
different kind, for a subsequent offence, and it is intended to prove such previous
conviction for the purpose of affecting the punishment which the court may think fit
to award for the subsequent offence, the fact date and place of the previous,
conviction shall be stated in the charge; and if such statement has been omitted,
the court may add it at any time before sentence is passed.

A charge must list the offence with which the person is charged. It must specify the
law and the section against which that offence has been done. For example, if a
person is charged with Murder, the charge must specify Section 300 of Indian Penal
Code. If the law gives a name to that offence, the charge must also specify that
name and if the law does not specify any name for that offence, the charge must
specify the detail of the offence from the definition of the offence so that the
accused is given a clear idea of it.

In many cases, on offender is given a bigger sentence for subsequent offence. In

such cases, the charge must also state the date and place of previous conviction so
that a bigger punishment may be given.
Illustrations -

(a) A is charged with the murder of B. This is equivalent to a statement that A's act
fell within the definition of murder given in sections 299 and 300 of the Indian Penal
Code (45 of 1860); that it did not fall within any of the general exceptions of the
said Code; and that it did not fall within any of the five exceptions to section 300, or
that, if it did fall within Exception 1, one or other of the three provisos to that
exception applied to it.
(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with
voluntarily causing grievous hurt to B by means of an instrument for shooting. This
is equivalent to a statement that the case was not provided for by section 335 of
the said Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal
intimidation, or using a false property-mark. The charge may state that A committed
murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or
that he used a false property-mark, without reference to the definition, of those
crimes contained in the Indian Penal Code; but the sections under which the offence
is punishable must, in each instance, be referred to in the charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with
intentionally obstructing a sale of property offered for sale by the lawful authority of
a public servant. The charge should be in those words.

Time and Place of the offence

Further, as per section 212, the charge must also specify the essential facts such
as time, place, and person comprising the offence. For example, if a person is
charged with Murder, the charge must specify the name of the victim and date and
place of the murder. In case of Shashidhara Kurup vs Union of India 1994, no
particulars of offence were stated in the charge. It was held that the particulars of
offence are required to be stated in the charge so that the accused may take
appropriate defence. Where this is not done and no opportunity is afforded to the
accused to defend his case, the trial will be bad in law for being violative of the
principles of natural justice.

It is possible that exact dates may not be known and in such cases, the charge must
specify information that is reasonably sufficient to give the accused the notice of
the matter with which he is charged. In cases of criminal breach of trust, it will be
enough to specify gross sum or the dates between which the offence was
committed.

Manner of committing the offence

Some times, even the time and place do not provide sufficient notice of the offence
which which a person is charged. In such situations, Section 213, mandates that
the manner in which the offence was made must also be specified in the charge. It
says that when the nature of the case is such that the particulars mentioned in
sections 211 and 212 do not give accused sufficient notice of the matter with which
he is charged, the charge shall also contain such particulars of the manner is which
the alleged offence was committed as will be sufficient for that Purpose.

Illustrations-
(a) A is accused of the theft of a certain article at a certain time and place the
charge need not set out the manner in which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set out
the manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must
set out that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge or his public
functions at a given time and place. The charge must set out the manner obstructed
B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not
state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save punishment.
The charge must set out the disobedience charged and the law infringed.

Effects of errors in a Charge

In general, an error in a Charge is not material unless it can be shown that the error
misled the accused or that the error caused injustice. Section 215 says, "No error
in stating either the offence or the particulars required to be stated in the charge,
and no omission to state the offence shall be regarded at any stage of the case as
material, unless the accused was in fact misled by such error or omission, and it has
occasioned a failure of justice."

Illustrations:

(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with
"having, been in possession of counterfeit coin, having known at the time when he
became possessed thereof that such coin was counterfeit," the word "fraudulently"
being omitted in the charge. Unless it appears that A was in fact misled by this
omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set
out in the charge, or is set out incorrectly. A defends himself, calls witnesses and
gives his own account of the transaction. The court may infer from this that the
omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set
out in the charge. There were many transactions between A and B, and A had no
means of knowing to which of them the charge referred, and offered no defence.
Court may infer from such facts that the omission to set out the manner of was, in
the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact,
the murdered person's name was Haidar Baksh, and the date of the murder was the
20th January. 1882. A was never charged with any murder but one, and had heard
the inquiry before the Magistrate, which referred exclusively to the case of Haidar
Baksh. The court may infer from these facts that A was not misled, and that the
error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and
Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882.
When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda
Baksh. The witnesses present in his defence were witnesses in the case of Haidar
Baksh. The court may infer from this that A was misled, and that the error was
material.
The above illustrations show that when the accused in not misled, the error is not
material. For example, in the case of Rawalpenta Venkalu vs State of
Hyderabad, 1956, the charge failed to mention the Section number 34 of IPC but
the description of the offence was mentioned clearly. SC held that the the section
number was only of acedemic significance and the ommission was immaterial.

Section 464 further provides that an order, sentence, or finding of a court will not
be deemed invalid merely on the ground that no charge was framed or on the
ground of any error, omission or irregularity in the charge including any misjoinder
of charges, unless in the opinion of the court of appeal, confirmation, or revision, a
failure of justice has in fact happened because of it. If such a court of appeal,
confirmation, or revision find that a failure of justice has indeed happened, in case
of omission, it may order that a charge be immediately framed and that the trial be
recommenced from the point immediately after the framing of the charge, and in
case of error, omission, or irregularity in the charge, it may order new trial to be
held upon a charge framed in whatever manner it thinks fit.

As is evident, the object of these sections is to prevent failure of justice where there
has been only technical breach of rules that does not affect the root of the case as
such. As held in the case of Kailash Gir vs V K Khare, Food Inspector, 1981, the
above two sections read together lay down that whatever be the irregularity in
framing the charge, it is not fatal unless there is prejudice caused to the accused.

Further, Section 216 allows the court to alter the charge anytime before the
judgement is pronounced.

Section 216:
(1) Any court may alter or add to any charge at any time before judgment is
pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with
the trial is not likely, in the opinion of the court to prejudice the accused in his
defence or the prosecutor in the conduct of the case the court may, in its discretion,
after such alteration or addition has been made, proceed with the trial as if the
altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is
likely, in the opinion of the court to prejudice the accused or the prosecutor as
aforesaid, the court may either direct a new trial or adjourn the trial for such period
as may be necessary.
(5) lf the offence stated in the altered or added charge is one for the prosecution of
which previous section is necessary, the case shall not be proceeded with until such
sanction is obtained, unless sanction had been already obtained for a prosecution
on the same facts as those on which the altered or added charge is founded.

Thus, even if there is an error in a charge, it can be corrected at a later stage. An

error in a charge is not important as long as the accused in not prejudiced and
principles of natural justice are not violated.

Difference between Charge and FIR

A First Information Report is a description of the situation and the act that
constitutes a cognizable offence as given to the office in charge of a police station
by any person. Such information is signed by the person giving the information. If
the information is given orally, it is reduced in writing by the officer in charge, read
over to the informant, and then signed by the person. The substance of this
information is also entered into a register which is maintained by the officer. This is
the first time when an event is brought to the attention of the police. The objective
of the FIR is to put the police in motion for investigating the occurance of an act,
which could potentially be a cognizable offence.

An FIR is a mere allegation of the happening of a cognizable offence by any person.

It provides a description of an event but it may not necessarily provide complete
evidence. No judicial mind has to be applied while writing the FIR. However, upon
receipt of an FIR, the police investigates the issue, collects relevant evidence, and if
necessary, places the evidence before a magistrate. Based on these preliminary
findings of the police, the magistrate then formally prepares a charges , with which
the perpetrator is charged.

Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the
offences but Charge is a precise formulation of the offences committed. An FIR is a
description of an event, while a Charge is a description of the offences committed in
that event. An FIR may or may not name an offender but a charge is always against
a person. An FIR is always of a cognizable offence, but a charge may also include a
non-cognizable offence.

Q. Explain the principle of separate charges

for distinct offences. Are there any
exceptions? (sec 218, 219, 220, 221, 223).
When can multiple offences be charged
separately, when can they be tried in the
same/different trial? What do you understand
by Joinder of charges?
The initial requirement in conducting a fair trial in criminal cases is a precise
statement of the charges of the accused. This requirement is ensured by CrPC
through Sections 211 to 214, which define the contents of a charge. Precise
formulation of charges will amount to nothing if numerous unconnected charges
are clubbed together and tried together. To close this gap, Section 218 enunciates
the basic principle that for every distinct offence there should be a separate charge
and that every such charge must be tried separately.

Section 218 says thus -

(1) For every distinct offence of which any person is accused there shall be a
separate charge and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and
the Magistrate is of opinion that such person is not likely to be prejudiced thereby
the Magistrate may try together all or any number of the charges framed against
such person.
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another
occasion. A must be separately charged and separately tried for the theft and
causing grievous hurt.

The object of Section 218 is to save the accused from being frustrated in his
defense if distinct offences are lumped together in one charge or in multiple
charges but tried in the same trial. Another reason is that the court may become
prejudiced against the accused if he were tried in one trial for multiple charges
resting on different evidence since it might be difficult for the court not be get
influenced on one charge by evidence against him on other charges.
It must be noted that Section 218 says "distinct offences" must be charged and
tried separated. It does not say "every offence" or "each offence". It has been held
in Banwarilal Jhunjhunwala vs Union of India AIR 1963, that "distinct offence"
is different from "every offence" and "each offence". Separate charge is required for
distinct offence and not necessarily for every offence or each offence. Two offences
are distinct if they are not identical and are not in any way interrelated. A distinct
offence may distinguished from other offences by difference in time or place of
commitment, victims of the offence, or by difference in the sections of the law
which make the acts as offence.

However, a strict observance to Section 218 will lead to multiplicity of trials, which
is also not desirable. Therefore sections 219 to 223 provide certain exceptions to
this basic rule. These are as follows -
[3TBDGDJ]

Exception 1. Three offences of the same kind within a year - Section 219 -
When a person is accused of more than one offences of the same kind within a span
of twelve months, he may be charged and tried at one trial for any number of such
offences not exceeding three. For example, if a person is accused of theft in three
different homes in the span 12 months, he can be charged with all the three at once
and tried at the same trial. The period of 12 months is counted from the occurance
of the first offence up to the last offence.
An offence is considered to be of the same kind if it is punishable by the same
amount of punishment under the same section of IPC or of the local or special law.
Further, if the attempt to commit an offence is an offence, then it is considered an
offence of the same kind for the purpose of this section.

Exception 2. Offences committed in the course of same transaction -

Section 220(1) - If a person commits multiple offences in a series of acts that
constitutes one transaction, he may be charged with and tried in one trial for every
such offence. The code does not define the meaning of the term transaction.
However, it is well accepted that a precise definition of transaction is not possible
and even Supreme Court has not attempted to define it. In case of State of AP vs
Cheemalapati Ganeshwara Rao, AIR 1963, SC observed that, it would always be
difficult to define precisely what the expression means. Whether a transaction is to
be regarded as same would depend upon the facts of each case. But is is generally
thought that were their is proximity of time, place, or unity of purpose and design or
continuity of action in a series of acts, it may be possible that they form part of the
same transaction. It is however not necessary that every one of these elements
should coexist for considering the acts as part of the same transaction.
For example, A commits house-breaking by day with intent to commit adultery, and
commits in the house so entered, adultery with B's wife. A may be separately
charged with, and convicted of, offences under sections 454(Lurking house trespass
or house breaking with an intention to commit offence punishable with
imprisonment) and 497(Adultery) of the Indian Penal Code.

Exception 3 - Offences of criminal breach of trust or dishonest

misappropriation of property and their companion offences of falsification
of accounts - Section 220(2) - Usually the offence of criminal breach of trust or
dishonest misappropriation of property is committed with the help of offence of
falsification of accounts to conceal the main offence. This section allows such
offences to be charged with and tried at one trial.

Exception 4 - Same act falling under different definitions of offences -

Section 220(3) - If an act constitutes an offence under two or more separate
definitions of any law in force, the person may be charged with and tried at one trial
for each of the offences. For example, A wrongfully strikes B with a cane. This act
constitutes an offence as per Section 323 (Voluntarily causing hurt) as well as
Section 252 (Assult or criminal force otherthan on grave provocation). Thus, the
person may be charged with both and tried for both the offences at the same trial.

Exception 5 - Acts forming an offence, also constituting different offences

when taken separately or in groups - Section 220(4) - When several acts
together constitute an offence and those acts, which taken individually or in groups,
also constitune another offence or offences, the person committing those acts may
be be charged with and tried at one trial. For example, A commits robbery on B, and
in doing so voluntarily causes hurt to him. A may be separately charged, with and
convicted of offences under sections 323(Voluntarily causing hurt), 392(Robbery)
and 394(Voluntarily causing hurt while committing robbery) of the Indian Penal
Code.

Exception 6 - Where it is doubtful what offence has been committed -

Section 221 - If a single act or a series of acts is of such nature that it is doubtful
which of the several offence the facts of the case will constitute, the accused may
be charged with having committed all or any of such offences and all or any of such
charges may be tried at once. Further, in such a situation, when a person is charged
with an offence but according to evidence it appears that he committed another
offence, he may be convicted of the offence which he is shown to have committed
even if he is not charged with that offence. For example, A is accused of an, Act
which may amount to theft, or receiving stolen property, or criminal breach of trust
or cheating. He may be charged with theft, receiving stolen property, criminal
breach of trust and cheating, or he may be charged with having committed theft, or
receiving stolen property or criminal breach of trust or cheating.
Further, in the same case mentioned, lets say, A is only charged with theft and it
appears that he committed the offence of criminal breach of trust, or that of
receiving stolen goods. He may be convicted of criminal breach of trust of receiving
stolen goods (as the case may be) though he was not charged with such offence.
Another illustration is as follows - A states on oath before the Magistrate that he saw
B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A
may be charged in the alternative and convicted of intentionally giving false
evidence, although it cannot to be proved which of these contradictory statements
was false.

Exception 7 - Certain persons may be charged jointly - Section 223 - The

following persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course of the same
transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt
to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning
of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same
transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or
criminal misappropriation, and persons accused of receiving or retaining, or
assisting in the disposal or concealment of, property possession of which is alleged
to have been transferred by any such offence committed by the first-named
persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal
Code (45 of 1860) or either of those sections in respect of stolen property the
possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45
of 1860) relating to counterfeit coin and persons accused of any other offence under
the said Chapter relating to the same coin, or of abetment of or attempting to
commit any such offence; and the provisions contained in the former part of this
Chapter shall, so far as may be, apply to all such charges :

Provided that where a number of persons are charged with separate offences and
such persons do not fall within any of the categories specified in this section, the
Magistrate may, if such persons by an application in writing, so desire, and if he is
satisfied that such persons would not be prejudicially affected thereby, and it is
expedient so to do, try all such persons together.

Q. What are the preliminary pleas that can be

used to bar a trial? "Every offence shall
ordinarily be inquired and tried by court
within the local limits of whose jurisdiction it
was committed." Explain the statement and
state its exceptions, if any.
General Concept
When an accused appears or is brought before the court for a trial, he may raise
certain pleas or objections to avoid the trial. For example, he may plead that the
court does not have jurisdiction in the case or that the offence happened too long
ago, or that he has already been tried and acquitted for the same offence. Such
pleas are meant to stop the trial from proceeding further and discharge the
accused. However, such pleas may also be raised by prosecution when the court
does not have competency or jurisdiction in the case.
Such pleas are supposed to be brought forth at the beginning of a trial or as soon as
charges are framed. However, there is no explicit direction in Cr P C regarding the
timing for such pleas.

The follow are the pleas that can be raised -

1. Court without Jurisdiction - Jurisdiction of criminal courts is of two kinds. One

that determines the competency of the court to try a specific offence and the other
that determines whether the offence happened in the territory of the court, which is
also known as territorial jurisdiction.

Competency of the Court to try the offence - Section 26 read with column 6 of
the first schedule determines which court can try a given offence. For example,
offences against public tranquility can be tried by any magistrate while the offence
of counterfeiting a government stamp can be tried only by a Court of Session.
Similarly, only the prescribed court or magistrate has the power for all the offences
defined in IPC and other laws.
Thus, any party to the proceeding can raise the plea that the court is not competent
to try the concerned offence. Section 461 provides that it any magistrate, who is not
empowered to try an offence, tries the offender for that offence, the proceedings
shall be void.

Also, an executive magistrate has no power to try for any offence.

Further, as per Section 479, no magistrate or judge can try any case in which he is a
party or in which he is interested. If a trial is initiated in violation of this rule, a plea
can be raised in this regard.

Territorial Jurisdiction - This jurisdiction is determined according to Section 177

to 188 of CrPC. These rules have been enacted mainly for the purpose of
convenience of the court, the investigating agency, the accused, and the victim.
The general concept is that only the court in whose territory the offence or any part
of offence has happened, can try that offence. In simple terms, an offence
committed in Mumbai cannot be tried in a court in Delhi. However, most case are
not as simple as that. For example, A hurts B by a knife in Dewas and D dies
because of the wound in Indore. In this case, both the courts in Dewas and Indore
have jurisdiction. However, if the victim B lives in Bhopal and if FIR of his death is
filed in Bhopal, can A be tried in Bhopal? If not, and if A is tried in Bhopal, A can
raise a pleas to bar the trial in Bhopal.

Any violation of the rules of territorial jurisdiction does not ipso factor vitiate the
trial unless it has in fact resulted in failure of justice. However, if a plea of territorial
jurisdiction is raised in the beginning of the trial, then such objection must be
sustained and the trial must be stopped. It cannot gain legitimacy under Section
462 in that case.

2. Time barred proceedings - Earlier, any offence committed could have been
taken cognizance of after any number of years. This caused grave injustice to the
accused as important witnesses became unavailable, or important evidence was
destroyed by time. For these reasons, CrPC has now incorporated some general
rules for taking cognizance of the crimes within a specific period of their happening.
In general, the principle that offences punishable with only fine or with
imprisonment up to 3 yrs should be tried within a limited time. The provisions
regarding such limitations are contains in Section 467 to 473 and an accused can
take advantage of the appropriate section to raise the plea that the case against
him is barred by the prescribed period of limitation.

Section 468 contains the basic rule which provides that no court shall take
cognizance of an offence punishable with fine only or with imprisonment up to
three yrs after the expiry of the period of limitation. The period of limitations are -
1. 6 months, if the offence is punishable by fine only.
2. 1 yr, if the offence is punishable with imprisonment of a term not exceeding 1 yr.
3. 3 yrs, if the offence is punishable with imprisonment of a term not exceeding 3 yr.

These provisions are subject to any other provision which might have been created
explicitly for any particular offence.
Trial of offences of serious nature, i.e. offences which entail punishment of
imprisonment of more than 3 yrs, or death, as of yet, are not barred by any time
limitation.

3. Plea of autrefois acquit and autrefois convict - This means that if the
offender has already been tried for the exact same offence before and he has been
either acquitted or convict in that trial, he cannot be tried again on that offence. Art
20(2) of the constitution recognizes this principle as a fundamental right. It says
that no person shall be prosecuted and punished for the same offence more than
once. While the article gives this right only upon previous conviction, section 300
fully incorporates this principle.

4. Disabilities of the accused - Under the broad interpretation of Article 21 by

Supreme Court, an accused has a fundamental right to be represented by a legal
practitioner in his trial. If he is indigent, it is the responsibility of the state to provide
a lawyer for him. Section 304 also requires the court to assign a pleader for the
accused in certain situations. If this is not done, a plea can be raised in this regard.
If the trial still proceeds, despite the objects, the trial is deemed to be vitiated.

Further, when the accused is of unsound mind and consequently incapable of

making his defence, the code requires the court to postpone the trial until the
accused has ceased to be so. The accused can raise this plea for objecting the trial.

5. Principle of issue estoppel -

6. Application of res judicata

Q. Discuss the causes of Juvenile Delinquency. Who is a
child in need of care and protection? State the procedure
followed by Juvenile Justice Court. State the orders that can
be passed for delinquent children under this act. Describe
the main features of Juvenile Justice (Care and Protection)
Act, 2000. What protections are given by the legislature and
the judiciary to juvenile delinquents?
Causes of Juvenile Delinquency
Common sense stuff

Reasons for enacting this act -

WHEREAS the Constitution has, in several provisions, including clause (3) of article 15,
clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary
responsibility of ensuring that all the needs of children are met and that their basic human
rights are fully protected;
AND WHEREAS, the General Assembly of the United Nations has adopted the Convention
on the Rights of the Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of standards
to be adhered to by all State parties in securing the best interests of the child;
AND WHEREAS, the Convention on the Rights of the Child emphasizes social reintegration of
child victims, to the extent possible, without resorting to judicial proceedings;
AND WHEREAS, the Government of India has ratified the Convention on the 11th December,
1992.
AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in
mind the standards prescribed in the Convention on the Rights of the Child, the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the
Beijing rules), the United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (1990), and all other relevant international instruments.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-

Art 15(3) - State can make any special provision for women and children.
Art 39 (e) - It shall be the duty of the state to ensure that the health and strength of workers, men
and women, and the tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength;
Art 39 (f) - It shall be the duty of the state to ensure that children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and
against moral and material abandonment.
Art 45/Now Art 21A - The State shall endeavor to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until they
complete the age of fourteen years.
Art 47 - The State shall regard the raising of the level of nutrition and the standard of living of
its people and the improvement of public health as among its primary duties and, in particular,
the State shall endeavor to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.
Art 51(k) - It shall be the duty of the citizen of India who is a parent or guardian to provide
opportunities for education to his child or, as the case may be, ward between the age of six and
fourteen years.

Child in need of care and protection [OPMUNEVACCC]

As per Section 2(d), "child in need of care and protection" means a child -

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

2. who resides with a person (whether a guardian of the child or not) and such person has
threatened to kill or injure the child and there is a reasonable likelihood of the threat
being carried out, or has killed, abused or neglected some other child or children and
there is a reasonable likelihood of the child in question being killed, abused or neglected
by that person,

3. who is mentally or physically challenged or ill children or children suffering from

terminal diseases or incurable diseases having no one to support or look after,

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

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

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

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

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

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

Neglected Child
The term neglected child has been removed from the current JJA and has been replaced with
"Child in need of care and protection" defined above. The old act defines "neglected juvenile" as
a juvenile who-
(i) is found begging; or
(ii) is found without having any home or settled place of abode and without any ostensible means
of subsistence and is destitute;
(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile; or
(iv) lives in a brothel or with a prostitute or frequently goes to any place used for the purpose of
prostitution, or is found to associate with any prostitute or any other person who leads an
immoral, drunken or depraved life;
(v) who is being or is likely to be abused or exploited for immoral or illegal purposes or
unconscionable gain;

Section 2(k) - "juvenile" or "child" means a person who has not completed eighteenth year of
age;
Section 2(l) - "juvenile in conflict with law" means a juvenile who is alleged to have
committed an offence;
Section 2(b) - "Begging" means -
i. soliciting or receiving alms in a public place or entering into any private premises for the
purpose of soliciting or receiving alms, whether under any pretence;
ii. exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound,
injury, deformity or disease, whether of himself orof any other person or of an animal;

Composition and Procedure followed by Juvenile Justice

Court.
Composition
As per Section 4
(1) The State Government may constitute for a district or a group of districts specified in the
notification, one or more Juvenile Justice Boards for exercising the powers and discharging the
duties conferred or imposed on such Boards in relation to juveniles in conflict with law under
this act.

(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class,
as the case may be, and two social workers of whom at least one shall be a woman, forming a
Bench and every such Bench shall have the powers
conferred by the Code of Criminal Procedure,on a Metropolitan Magistrate or, as the case may
be, a Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as
the principal Magistrate.

(3) No Magistrate shall be appointed as a member of the Board unless he has special knowledge
or training in child psychology or child welfare and no social worker shall be appointed as a
member of the Board unless he has been actively involved in health, education, or welfare
activities pertaining to children for at least seven years.

(4) The term of office of the members of the Board and the manner in which such member may
resign shall be such as may be prescribed.

(5) The appointment of any member of the Board may be terminated after holding inquiry, by the
State Government, if -
i. he has been found guilty of misuse of power vested under this act,
ii. he has been convicted of an offence involving moral turpitude, and such conviction has not
been reversed or he has not been granted full pardon in respect of such offence,
iii. he fails to attend the proceedings of the Board for consecutive three months without any valid
reason or he fails to attend less than three fourth of the sittings in a year.

Section 5 - Procedure
(1) The Board shall meet at such times and shall, observe such rules of procedure in regard to the
transaction of business at its meetings, as may be prescribed.
(2) A child in conflict with law may be produced before an individual member of the Board,
when the Board is not sitting.
(3) A Board may act notwithstanding the absence of any member of the Board, and no order
made by the Board shall be invalid by reason only of the absence of any member during any
stage of proceedings: Provided that there shall be at least two members including the principal
Magistrate present at the time of final disposal of the case.
(4) In the event of any difference of opinion among the members of the Board in the interim or
final disposition, the opinion of the majority shall prevail, but where there is no such majority,
the opinion of the principal Magistrate, shall prevail.

Section 6 - Powers of the Board

(1) Where a Board has been constituted for any district or a group of districts, such Board shall,
have power to deal exclusively with all proceedings under this Act, relating to juvenile in conflict
with law.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High
Court and the Court of Session, when the proceedings comes before them in appeal, revision or
otherwise.

Orders that can be passed for delinquent children

Section 15 - Orders that may be passed regarding a Juvenile

1. Where a Board is satisfied on inquiry that a juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other law for the time being in force,
the Board may, if it thinks so fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry
against and counseling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counseling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen
years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of
any parent, guardian or other fit person, on such parent, guardian or other fit person executing a
bond, with or without surety, as the Board may require, for the good behavior and well-being of
the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of
any fit institution for the good behavior and well-being of the juvenile for any period not
exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
i. in the case of juvenile, over seventeen years but less than eighteen years of age for a period of
not less than two years;
ii. in case of any other juvenile for the period until he ceases to be a juvenile :
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and
the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the
period of stay to such period as it thinks fit.

2. The Board shall obtain the social investigation report on juvenile either through a probation
officer or a recognized voluntary organization or otherwise, and shall take into consideration the
findings of such report before passing an order.

3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board
may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to
do, in addition make an order that the juvenile in conflict with law shall remain under the
supervision of a probation officer named in the order during such period, not exceeding three
years as may be specified therein, and may in such supervision order impose such conditions as
it deems necessary for the due supervision of the juvenile in conflict with law .
Provided that if at any time afterwards it appears to the Board on receiving a report from the
probation officer or otherwise, that the juvenile in conflict with law has not been of good
behavior during the period of supervision or that the fit institution under whose care the juvenile
was placed is no longer able or willing to ensure the good behavior and well-being of the
juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law
to be sent to a special home.
The Board shall while making a supervision order under sub-section (3), explain to the juvenile
and the parent, guardian or other fit person or fit institution, as the case may be, under whose
care the juvenile has been placed, the terms and conditions of the order shall forthwith furnish
one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit
institution, as the case may be, the sureties, if any, and the probation officer.

In case of Municipal Corporation of Delhi vs Rattanlal, 1971, it was held that while allowing
the release of a juvenile, the court should consider the following - circumstances of the case,
circumstances of the accused, age, and family background.

Section 16 Orders that may not be passed against a Juvenile

(1) Notwithstanding anything to the contrary contained in any other law for the time being in
force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or
committed to prison in default of payment of fine or in default of
furnishing security :
Provided that where a juvenile who has attained the age of sixteen years has committed an
offence and the Board is satisfied that the offence committed is of so serious in nature or that his
conduct and behavior have been such that it would not be in his interest or in the interest of other
juvenile in a special home to send him to such special home and that none of the other measures
provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with
law
to be kept in such place of safety and in such manner as it thinks fit and shall report the case for
the order of the State Government.
(2) On receipt of a report from a Board under sub-section (1), the State Government may make
such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be
kept under protective custody at such place and on such conditions as it thinks fit :
Provided that the period of detention so ordered shall not exceed the maximum period of
imprisonment to which the juvenile could have been sentenced for the offence committed.

In Rejesh Kheton vs State of W B, 1983, it was observed that the main object of the provision
contained in Section 16 of the act is to prevent the juvenile from the contact of hardened
criminals so that they are saved from contamination.

In Sheela Barse vs U of I, AIR 1986, it was held that juveniles should not be held in jail but in
Shelter Homes.

Observation Home - Section 8

Special Home - Section 9
Bail to Juvenile - Section 12

Protections given by the legislature and the judiciary to

juvenile delinquents
Protection by Legislature - The legislature has enacted several laws for the protection of
Juveniles. Most important among them is Juvenile Justice (Care and Protection) Act, 2000.

Legal Protection
Through Juvenile Justice (Care and Protection) Act, 2000, several measures have been adopted
to ensure that a juvenile is not punished or treated like hardened criminals. Some of the measures
are -

1. Hearing of cases involving juvenile by Juvenile Justice Board

2. Bail Provisions for juvenile

3. No prison term to juvenile.

4. No joint proceeding of Juvenile and Non Juvenile

5. Removal of disqualification attached to conviction

Social Protection
Juvenile Justice Act also contains measures to ensure that a juvenile in conflict of law is given
opportunities to reform.

1. Establishment of Observation and Special Home

 2. Education and Training facilities

Preventive Measures

1. Several acts such as employment of juveniles in dangerous activities, forcing juveniles to

beg, or steal, or giving intoxicating substances to a juvenile, publication of names or
other details of a juvenile in conflict of law in media, have been made cognizable
offences by JJA.

2. Supervision by Probation Officer to ensure that a juvenile is not influenced by bad

elements.

Several other acts such as Factories Act, 1948 include provisions for protection of Juveniles.

Constitutional Provisions
Article 21A - Right to education
Article 24 Prohibition of employment of children in factories, etc. No child below the age of fourteen years
shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Article 39 provides that that children are given opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
Article 45 Provision for free and compulsory education for children

Protections given by Judiciary

Judiciary has always been very sympathetic to the cause of Juveniles. Even before appropriate
laws were enacted, Judiciary promoted directives for the protection of juveniles through its
judgement. For example, it was the judiciary, which emphasized on Education for children by
making it a fundamental right under Article 21.

Q. Discuss the aims and objectives of

Probation of Offenders Act, 1958. State the
powers of the court regarding release of
certain offenders on probation of good
behavior under this act. Explain the offenses
in which a court can and cannot grant the
benefit of probation. Explain the procedure
followed against the offender who breaches
the probation conditions. Section 360 of CrPC
and Section 4 of Probation of Offenders Act
both empower the court to release a
convicted offender on probation of good
behavior. Which section has overriding
effect?
Mahatma Gandhi once said, "Hate the crime not the criminal". This means that we
need to eliminate crime and eliminating criminals is not the way to do it. While it is
true that punishment gives a sense of satisfaction to the victims and to the society
in general, it has been observed that in most of the cases punishment, specially
imprisonment, does not actually reform the criminal. In most cases, once a person
comes out of a prison, he gets back to his old ways of being in conflict with the law.
This is true even more with young criminals, whose minds are not fully mature. They
get influenced in the wrong way because of their interaction with hardened
criminals in jails.

One way to counter this problem is to provide opportunities and guidance to young
and first time offenders instead of committing them to jails. The idea behind such
treatment is that, normally, human beings do not resort to crime unless they are
forced due exceptional circumstances. If we want to reduce crime, we should make
sure that chance criminals are given an opportunity to get reformed instead of
turning into hardened criminals. This is the aim behind Probation of Offender's Act,
1958. It allows the court to take into account the nature of the crime, the age of the
offender, and the circumstances of the crime, and instead of committing the
offender to jail, release him under supervision and guidance of a probation officer.
This ensures that the offender is integrated back into the society. The act is based
on the reformatory approach, which is adopted in many countries of the world. For
example, in USA, almost 60% of the offenders are released on probation.

The object of probation has been laid down in the judgment of Justice Horwill in In
re B. Titus - S. 562 is intended to be used to prevent young persons from being
committed to jail, where they may associate with hardened criminals, who may lead
them further along the path of crime, and to help even men of mature years who for
the first time may have committed crimes through ignorance or inadvertence or the
bad influence of others and who, but for such lapses, might be expected to make
good citizens. In such cases, a term of imprisonment may have the very opposite
effect to that for which it was intended. Such persons would be sufficiently punished
by the shame of having committed a crime and by the mental agony and disgrace
that a trial in a criminal court would involve.

It must, however, be kept in mind that reformation does not always work. Some
crimes are so abhorrent and some criminals are so unrepentant that it is best to
punish them so that the price of committing the crime keeps them from committing
it again. For some of them, there is no hope for reform, and it is best to protect the
society from them by locking them away for life.

Main Features of the Act / Powers of the court regarding

release of certain offenders
Depending on the circumstances of the case, a court may release the person in two
ways - release after admonishing the person, which is provided in Section 3, and
release on probation of good conduct, which is provided in Section 4. Both are
explained below.

Release After Admonishing

Admonishing means to warn or reprimand. In this mode of release, the court scolds
the person, and in a way, tries to appeal to the good conscious of the person and
releases him. Section 3 says thus:
When any person is found guilty of having committed an offence punishable under
Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of
the Indian Penal Code or any offence punishable with imprisonment for not more
than two years, or with fine, or with both, under the Indian Penal Code or any other
law, and no previous conviction is proved against him and the court by which the
person is found guilty is of opinion that, having regard to the circumstances of the
case including the nature of the offence and the character of the offender, it is
expedient so to do, then, notwithstanding anything contained in any other law for
the time being in force, the court may, instead of sentencing him to any punishment
or releasing him on probation of good conduct under section 4, release him after
due admonition.

The conditions required to be released under this section are -

1. The offence must be punishable with imprisonment for less than 2 yrs or with
only fine or with both. Or if the offence is punishable under any of the Sections 379,
380, 381, 404, and 420.
2. The offender does not have any prior convictions.

If the above conditions are satisfied, then the court must take into consideration the
nature of the crime and the antecedents and character of the offender and if it
thinks suitable, it can release the offender after warning.

Release on Probation
As per Section 4, if any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the court by which the person is
found guilty is of opinion that, having regard to the circumstances of the case
including the nature of the offence and the character of the offender, it is expedient
to release him on probation of good conduct, then, notwithstanding anything
contained in any other law for the time being in force, the court may, instead of
sentencing him at once to any punishment, direct that he be released on his
entering into a bond, with or without sureties, to appear and receive sentence when
called upon during such period, not exceeding three years, as the court may direct
and in the meantime to keep the peace and be of good behavior. The section further
requires that the offender or his surety has a fixed place of residence or regular
occupation in a place where the court exercises jurisdiction.

Also, before making any such order, the court shall take into consideration the
report, if any, of the probation officer concerned in relation to the case. However, it
is not necessary that the court has to act on probation officers report. It can also
gather information from other source and on its own analysis.
The court may also require the offender to remain under the supervision of a
probation officer during certain period, if it thinks that it is in the interests of the
offender and of the public. It can also impose appropriate conditions which might be
required for such supervision. In case the court does specify such conditional
release, it must require the offender has to enter into a bond, with or without
sureties, enumerating the conditions. The conditions may relate to place of
residence, abstention from intoxicants, or any other matter as the court thinks
appropriate to ensure that the crime is not repeated.

As per Section 5, the Court directing the release of an offender under section 3 or
section 4, may, if it thinks fit, make at the same time a further order directing him
to pay-
(a) such compensation as the court thinks reasonable for loss or injury caused to
any person by the commission of the offence ; and
(b) such costs of the proceedings as the court thinks reasonable.

Offenses in which benefit of probation can and cannot be

granted
Section 4, as described above, gives a general direction to the court for deciding
when and when not to give the benefit of probation. The words, "if the court is of
the opinion" basically give discretionary power to the court in this respect. Section
6, however, tries to impress upon the court to lean in favor of giving benefit in cases
of young and immature adults. When any person under twenty-one years of age is
found guilty of having committed an offence punishable with imprisonment (but not
with imprisonment for life), the court by which the person is found guilty shall not
sentence him to imprisonment unless it is satisfied that, having regard to the
circumstances of the case including the nature of the offence and the character of
the offender, it would not be desirable to deal with him under section 3 or section 4,
and if the court passes any sentence of imprisonment on the offender, it shall
record its reasons for doing so. For the purpose of satisfying itself whether it would
not be desirable to deal under section 3 or section 4, the court shall call for a report
from the probation officer and consider the report, if any, and any other information
available to it relating to the character and physical and mental condition of the
offender.

Thus, even though no mathematical rule is given, the general intention of the
legislature is to give the benefit of probation as much as possible. In Jugal Kishore
Prasad vs State of Bihar 1972, the Supreme Court observed that the object of
the Probation of Offenders Act, "is in accordance with the present trend in the field
of penology, according to which efforts should be made to bring about correction
and reformation of the individual offenders and not to resort to retributive justice.
Modern criminal jurisprudence recognizes that no one is a born criminal and that a
good many crimes are the product of socio-economic milieu."

In absence of a precise formula to determine when and when not the benefit of
probation can be given, we have to look at SC court judgments to understand what
kind of offenses are eligible for this benefit. SC has accepted the applicability of
probation for many kinds of offences. For example, in Isherdas v. State of
Punjab, the Supreme Court held that the Probation of Offenders Act was applicable
to the offenses under the Prevention of Food Adulteration Act, 1954.

In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR

1976, the appellant was below 21 years of age. The appellant was at one time a
well known child film actor and won several awards for acting in films. Subsequently
he fell in bad company and took to evil ways. SC held that even if the point relating
to Section 6 is not raised before the High Court, the court was bound to take notice
of the provisions of the section and give its benefit to the applicant. It further held
that Section 6 lays down an injunction not to impose a sentence of imprisonment on
a reason who is under 21 years of' age and if found guilty of having committed an
offence punishable with imprisonment other the that for if unless it is satisfied that
it would not be desirable to deal with him under Section 3 or Section 4. This
inhibition on the power of the court to impose a sentence of imprisonment applies
not only at the state of trial but also at the stage of High Court or any other court
when the case comes before it in appeal or revision.

However, in Uttam Singh vs Delhi Administration, 1971, the appellant was of

36 yrs of age and was caught with 3 sets of playing cards and obscene
photographs. SC refused to allow him the benefit of release on probation having
regards to his age and nature of crime.

There have been cases where the court has let of even rapists on probation and
there have been cases where even minor offenses have not been given the benefit
of probation. It can be said that this benefit is given on case to case basis after
looking at the peculiarities of the case. It is not possible to categorize the offences
in this respect.

Procedure when the offender breaches the conditions of

Probation
As per Section 9, if the court which passes an order under section 4 in respect of
an offender or any court which could have dealt with the offender in respect of his
original offence has reason to believe, on the report of a probation officer or
otherwise, that the offender has failed to observe any of the conditions of the bond
or bonds entered into by him, it may issue a warrant for his arrest or may, if it thinks
fit, issue a summons to him and his sureties, if any, requiring him or them to attend
before it at such time as may be specified in the summons.

The court before which an offender is so brought or appears may either remand him
to custody until the case is concluded or it may grant him bail, with or without
surety, to appear on the date which it may fix for hearing.

If the court, after hearing the case, is satisfied that the offender has failed to
observe any of the conditions of the bond or bonds entered into by him, it may
forthwith
(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without prejudice to the continuance
in force of the bond, impose upon him a penalty not exceeding fifty rupees.
(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such
period as the court may fix, the court may sentence the offender for the original
offence.

It is important to note that the sentencing in respect of which the probation is given
is merely suspended when the offender is released on probation under Section 4.
Thus, if any condition of the probation is violated, the court may sentence the
offender for the original offence without conducting a fresh trial.

Probation Officer and his duties

As per Section 13, a probation officer under this Act shall be - (a) a person
appointed to be a probation officer by the State Government or recognised as such
by the State. Government ; or (b) a person provided for this purpose by a society
recognized in this behalf by the State Government; or (c) in any exceptional case,
any other person who, in the opinion of the court, is fit to act as a probation officer
in the special circumstances of the case.

Section 14 - Duties of probation officers

A probation officer shall, subject to such conditions and restrictions, as may be
prescribed,-
(a) inquire, in accordance with any directions of a court, into the circumstances or
home surroundings of any person accused of an offence with a view to assist the
court in determining the most suitable method of dealing with him and submit
reports to the court.
(b) supervise probationers and other persons placed under his supervision and,
where necessary, endeavor to find them suitable employment ;
(c) advise and assist offenders in the payment of compensation or costs ordered by
the court ;
(d) advise and assist, in such cases and in such manner as may be prescribed,
persons who have been released under section 4; and
(e) perform such other duties as may be prescribed.

Section 360 of CrPC and Section 4 of Probation of Offenders

Act
As per Section 19, in the states where Probation of Offenders Act is enacted, Section
360 of CrPC shall cease to apply. Thus, it is clear that Section 4 of Probation of
Offenders Act has overriding effect.

Section 360 of CrPC - Order to release on probation of good conduct or after

admonition :--(1)When any person not under twenty-one years of age is convicted of
an offence punishable with fine only or with imprisonment for a term of seven years
or less, or when any person under twenty-one years of age or any woman is
convicted of an offence not punishable with death or imprisonment for life, and no
previous conviction is proved against the offender, if it appears to the Court before
which he is convicted, regard being had to the age, Character or antecedents of the
offender, and to the circumstances in which the offence was committed, that it is
expedient that the offender should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any punishment, direct that he be
released on his entering into a bond, with or without sureties, to appear and receive
sentence when called upon during such period (not exceeding three years) as the
Court may direct, and in the meantime to keep the peace and be of good behavior.
Differences and Short Notes.
Summons Case and Warrant Case
As per Section 2(w), "summons-case" means a case relating to an offence, and not being a
warrant-case and as per Section 2 (x), "warrant-case" means a case relating to an offence
punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Cr
P C classifies an offence as either cognizable or non-cognizable, and a trial procedure as
summons case or warrant case. Thus, the terms summons case and warrant case are in reference
to the procedure adopted for the trial of the case. Thus, the difference between the two can be
seen from the point of view of their trial procedures as highlighted below -

D2CCPAWO
Summons Case
Cr P C prescribes only one procedure for all
summons cases, whether instituted upon a police
report or otherwise.
No charge needs to be framed only the particulars of A charge needs to be framed against the
the offence needs to be conveyed to the accused.
As per S. 252, if the accused pleads guilty, the
magistrate must record the plea of the accused and
may, in his discretion, convict him on such plea.
Accused my plead guilty by post without appearing
before the magistrate.
The accused may be acquitted, if the complainant is
absent or if the complainant dies.
The complainant may, with the permission of the
court, withdraw the complaint against the accused.
When a warrant case is tried as a summons case and
if the accused is acquitted under S. 255, the acquittal
will only amount to discharge.
Trial of a warrant case as a summons case it is a
Warrant case
Cr PC prescribes two procedures for the
trial of a warrant case my magistrate -
one for case instituted upon a police
report and one for case instituted
otherwise than on a police report.
accused.
As per S. 241, After the charge is framed,
the accused may plead guilty and the
magistrate may convict him on his
discretion.
Accused must appear personally.
Magistrate can discharge the accused if
complainant is absent, or no charge is
framed, or if the offence is compoundable
and non cognizable.
The complainant may, with the
permission of the court, withdraw the
remaining charges against an accused, if
he is charged with several offences and
convicted on one or more of them.
When a summons case is tried as a
warrant case and if the accused is
discharged under S 245, the discharge
will amount to acquittal.
Trial of a summons case as a warrant case
serious irregularity and the trial is vitiated if the is an irregularity which is curable under
accused has been prejudiced. Section 465.
A summons case cannot have charges that require a A warrant case may contain charges that
warrant case. reflect a summons case.
Accused may get more than one
Accused gets only one opportunity. opportunity to cross-examine the
prosecution witness.
A charge under a warrant case cannot be
split up into its constituents for trial under
summons case.
After convicting the accused, the
magistrate may take evidence regarding
No such power to the magistrate in summons case.
previous conviction not admitted by the
accused.
All cases which are not punishable by death, All cases which are punishable by death,
imprisonment for life, or for more than two years are imprisonment for life, or for more than
summons cases. two years are warrant cases.
Conversion
As per Section 259, a summons case can be
converted into a warrant case if the case relates to an
A warrant case cannot be converted into a
offence that entails more than 6 months of
summons case.
imprisonment as punishment and the judge feels that
in the interest of justice it the case should be tried as
a warrant case.

It is important to note that the question whether a summons or a warrant should be issued in the
case is not related to whether the case is a summons case or a warrant case.

Compoundable and Non Compoundable Offences - Some offences largely affect only the
victim and no considerable harm is considered to be done to the society. In such offences, if the
offender and victim compromise, there is no need to waste court's time in conducting a trial. The
process of reaching a compromise is called Compounding. Conceptually, such offences, in which
a compromise can be done and a trial can be avoided, are called Compoundable offence. Rest of
the offences are non-compoundable. Technically, offences classified as Compoundable by
Section 320 of Cr P C are compoundable. Section 320 specifies two kinds of Compoundable
offences - one where permission of court is required before compounding can be done for
example, voluntarily causing grievous hurt, Theft, criminal breach of trust, assault on a woman
with intention to outrage her modesty, etc. and one where permission of the court is not required
for example, causing hurt, adultery, defamation, etc. As per S. 320(3), if the abetment of an
offence is an offence and if the offence is compoundable then abetment is also compoundable.
Only the person, who is specified in the classification tables in Section 320, has the right to
compound the offence. The person is usually the victim. The offender cannot demand
compounding as a right.

However, when an offender has been committed to trial or when he has been convicted and his
appeal is pending, compounding can only be done with the leave of the court to which he is
committed or to which the trial is pending. If an offender is liable for enhanced punishment or a
different punishment on account of a previous conviction, compounding cannot be done. High
Court and Court of Session may, under their power of revision in Section 401, can allow any
person to compound any compoundable offence.

When an offence is compounded, it is equivalent to an acquittal.

Compoundable Offence Section 320 Non Compoundable Offence

Offences classified as compoundable by S. 320 of CrPC Rest of the offences
Private party as well as society both
Offence mostly affects a private party. are considerably affected by the
offence.
The victim and the offender may reach compromise No compromise is allowed. Even court
with or without the permission of the court depending does not have the power to compound
on the offence. the offence.
Upon compromise, the offender is acquitted without Full trial is held and acquittal or
any trial. conviction is given as per the evidence.

In Bhima Singh vs State of UP, AIR 1974, SC held that when an offence is compoundable with
the permission of the court, such permission may be granted by SC while an appeal is made
against the conviction provided the parties have settled the matter amicably.
In Ram Lal vs State of J&K, 1999, SC held that when an offence is declared non-
compoundable by law, it cannot be compounded even with the permission of the court. However,
the court may take the compromise into account while delivering judgment.
The case of B S Joshi vs State of Haryana, AIR 2003 is interesting in this regard. The case was
about the matter related to Section 498A, which is non-compoundable offence. In this case, the
parties reached a compromise but the High Court refused to quash the FIR, on the ground that
the offence is non-compoundable. However, SC held that in the backdrop of the interpretation of
the various relevant provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under Section 482 of the Code, such power could
be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad
kinds of cases wherein such power should be exercised. It further observed that in this case, the
parties were not asking for compounding the offence but for quashing the FIR. It observed that
since because of the amicable settlement, there is no chance of conviction and in such a case the
court has the power to quash the proceeding.

Information and Complaint

Information Complaint
As per Section 2(d), a complaint means any
allegation made orally or in writing to a
No legal definition. It is used in its regular magistrate, with a view to his taking action
English meaning. under this code (CrPC), that some person,
whether known or unknown, has committed an
offence, but does not include a police report.
The purpose of complaint is that the magistrate
No action from the magistrate is expected.
takes action on it and provide relief.
Magistrate takes cognizance of the offence as
No cognizance is taken.
per Section 190.
It may include information about commission
of offences, apprehension about breach of
peace, and presence of absconder and
It is always about commission of an offence.
suspected persons to police officers or
magistrate. Thus, an information may not
necessarily about an offence.

Sufficient grounds for commitment and Sufficient grounds for conviction

Sufficient grounds for commitment
When a magistrate takes cognizance of an offence under
Section 190 (upon receipt of a complaint or otherwise), he
examines the complaint in accordance with Section 200 by
examining the facts and the witnesses. If he finds that the
complaint is with merits, the case is deemed committed for
trial and the magistrate issues the process under Section
204. If the offence is exclusively triable by Court of
Session, the magistrate commits the case to Court of
Session under Section 209.
At this stage it is not considered whether the grounds are
sufficient for conviction.
Sufficient grounds for conviction
Upon holding the trial, if the court
is satisfied with the evidence
provided by the prosecute that the
accused is guilty of the alleged
offence, he convicts the offender.
The evidence must prove the guilt
of the accused without any doubt.

Discharge and Acquittal

Discharge
Session Trial
As per Section 227, if, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the
accused and record his reasons for so doing.
Warrant Trial By Magistrate
As per Section 239, if, upon considering the police
report and the documents sent with it under section 173
and making such examination, if any, of the accused as
the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the
accused, and record his reasons for so doing.
Discharge does not mean that the accused has not
committed the offence. It just means that there is not
enough evidence to proceed with the trial.
If further evidence is gathered later on, the accused
may be tried again.
Cognizable offence and Non-cognizable offence
Cognizable offence
Defined in Section 2(c) - "cognizable offence" means
an offence for which, and "cognizable case" means a
case in which, a police officer may, in accordance with
the First Schedule or under any other law for the time
being in force, arrest without warrant.
Examples - Murder, Dowry death, grevious hurt, theft.
Acquittal
Session Trial
If after evaluating the evidence given
by the prosecute, the judge considers
that there is no evidence that the
accused has committed the offence, the
judge acquits the offender under
Section 232.
However, if the offender is not
acquitted under Section 232, he is
permitted to give his defense and
evidence. After hearing the arguments
of both the parties, the court may
acquit of convict the person under
Section 235.
Warrant Trial By Magistrate
As per Section 248, if, in any case
under this Chapter in which a charge
has been framed, the Magistrate finds
the accused not guilty, he shall record
an order of acquittal.
Acquittal means that the accused has
been held innocent.
The accused cannot be tried again for
the same offence once he has been
acquitted.
Non Cognizable offence
Defined in Section 2(l) - "non-
cognizable offence" means an offence
for which, and "non-cognizable case"
means a case in which, a police officer
has no authority to arrest without
warrant.
Example - keeping a lottery
office,voluntarily causing hurt,
 dishonest misappropriation of property.
As per Section 155, Police has to enter
Police has to record information about a cognizable
information in register prescribed for it
offence in writing as per Section 154.
and refer the informant to a magistrate.
Police can start investigation without the order of a Police officer cannot investigate the
magistrate. case without the order of a magistrate.
In general, cognizable offences are of serious nature
which involve imprisonment of more than three years.
However, there is no such precise rule. To be
cognizable, an offence must be declared so by the law
defining that offence. Several offences which carry less
prison term such as rioting (2 yrs) have been declared
cognizable, while several with bigger prison term such
as False Evidence (7 yrs) or Rape by a man with his
own wife of not less than 12 yrs have been declared
non-cognizable.

First Information Report

The name FIR is given to the information given by any person about a cognizable offence and
recorded by the police in accordance with Section 154. As per this section, every information
relating to the commission of a cognizable offence, if given orally to an officer in charge of a
police station, shall be reduced to writing by him or under his direction, and be read over to the
informant; and every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a
book to be kept by such officer in such form as the State Government may prescribe in this
behalf.

SC in the case of State of Bombay vs Rusy Mistry, AIR 1960, defined FIR as so - A FIR means
the information, by whomsoever given, to the officer in charge of a police station in relation to
the commission of a cognizable offence and which is first in point of time and on the strength of
which the investigation into that offence is commenced.

Thus, FIR is nothing but information of the nature of a complaint or accusation about a
cognizable offence given by any person to the police so that the police can start investigation.
When a person reports any information about a cognizable offence to the police, the police is
bound to register a case and proceed with investigation. However, for police to investigate the
matter, the offence must be a cognizable offence. The police is not allowed to investigate a non-
cognizable offence without an order from a magistrate. So, once the duty officer is certain that
the offence alleged to have been committed is a cognizable offence, he directs the complainant to
put his statement in writing. In the presence of the complainant, the duty officer shall complete
all the columns in the FIR register with the information given by the complainant. He shall then
read out all the contents of the FIR registered to the complainant. Once the complainant is certain
that all the details have been correctly written, he should sign the FIR.

FIR merely contains the facts of the offence as known by the informant. The FIR is a statement
by the complainant of an alleged offence. The informant is not required to prove his allegations
in any manner at the police station. It is the job of the police to ascertain facts, verify details and
substantiate the charges or otherwise.

However, the facts must not be vague. The facts must divulge at least some concrete information
about the offence committed. In case of Tapinder Singh vs State, 1972, SC held that when a
telephone message did not disclose the names of the accused nor did it disclose the commission
of a cognizable offence, it cannot be called a FIR.

In case of State of UP vs R K Shrivastava, 1989, SC held that if the allegations made in an FIR
do not constitute a cognizable offence, the criminal proceeding instituted on the basis of the FIR
should be quashed.

Sometimes multiple persons may report the same incident and in such situation the police must
use commonsense and record one statement as FIR. Usually, the statement that contains enough
information to allow the police to proceed with investigation is recorded as FIR.

Evidentiary Value of FIR

A FIR is not substantive evidence that is, it is not evidence of the facts which it mentions.
However, it is very important since it conveys the earliest information about the occurrence of an
offence and it can be used to corroborate the information under Section 157 of Indian Evidence
Act or to contradict him under Section 145 of Indian Evidence Act, if the informant is called as a
witness in a trial. It is considered that FIR has a better corroborative value if it is recorded before
there is time and opportunity to embellish or before the memory of the information becomes
hazy. There must be a reasonable cause for the delay. For example, in case of Harpal Singh vs
State of HP, 1981, involving rape, the FIR was registered after 10 days. It was held that the
delay was reasonable because it involved considerable matter of honor for the family and that
required time for the family to decide whether to take the matter to court or not. As FIR can also
be used in cross examination of the informant.
However, if the FIR is made by the accused himself, it cannot be used against him because of
Section 25 of Evidence act which forbids any confession made to the police to be used against
the accused.

A FIR can also be used as a dying declaration under Section 32 of Indian Evidence Act.

Summary Trial
1. A kind of fast track proceeding where a case is resolved in one sitting.
2. Meant for petty offenses, to reduce the burden of court
S. 260 - When a case involving the following offenses comes to CJM, MM, and JMFC for
hearing, they have the discretionary power to decide whether they want to try the case summarily
or not. There are 9 such offences -
any offence that does not have death, life imprisonment or imprisonment of more than 2 yrs as
punishment, theft, lurking house trespass, receiving stolen property, assisting in concealment of
stolen property, abetment of the offences covered under this section, attempt of these offences.
If at any point in while trying the matter in this manner, if the court thinks that it is undesirable to
try the case summarily, it shall recall any witnesses who may have been examined and proceed to
re-hear the case in the manner provided in this code (i.e. as a summons trial or warrant trial)
S. 261 - High Court may give power to Judicial Magistrate Second class to try offences
involving imprisonment of less than 6 months summarily.
S. 262 - Sentence of imprisonment of more than 3 months cannot be passed in a summary trial
and the procedure adopted in a summary trial will be same as the procedure adopted in a
Summons case except the following changes -
S. 263 - The judge must record the following particulars in the prescribed format - serial number
of the case, date of offence, date of complaint, name of complainant, name, age, address,
parentage of accused, offence complained and offence proved, plea of the accused and his
examination, findings, sentence, and date of termination of the proceeding.
S. 264 - If the accused does not plead guilty, the judge must record the substance of the evidence
and give reasons for the judgment.
S. 265 - Every the such record and judgment shall be in the language of the court.

In Ram Lochan vs State, 1978, it was held that although trying a govt. servant summarily is
legal, it should not be done so because upon conviction, govt. servant may lose his job, which is
a serious loss.

Appeal and Revision in Summary Trials

No appeal lies if only a sentence of fine not exceeding 200/- is awarded. A revision application
would lie to the High Court in such a case.