COMMON LEGAL TERMS, WRIT AND CODE

OF CRIMINAL PROCEDURE, 1973

Admission
After a case is registered it is placed before the
Court for its hearing, known as the preliminary
hearing. The Court considers whether the case
should be proceeded with by directing the
respondents to show cause why the petition
should not be admitted. Sometimes the Court
admits a case without hearing the respondents,
or dismisses the case.
If the case is admitted, it is listed for a more
detailed hearing. Notice is issued thereafter

Affidavit
This is a sworn statement made by a party, in
writing, made in the presence of an oath
commissioner or a notary public which is used
either in support of applications to the Court or
as evidence in court proceedings. In writ
jurisdiction, cases are generally disposed of on
the basis of affidavits. An affidavit in reply to a
petition, filed by a respondent, is called a
counter affidavit. The petitioners response to
this counter, is called a rejoinder affidavit. All
affidavits are verified as to the truth of their
contents.

Appeal
The correctness of the decision of a lower court or
tribunal is questioned by way of an appeal in a higher
court.
Arbitration
Settling disputes by referring them to independent
third parties as an alternative to court proceedings.
Attestation
The authentication of a signature by an authorized
person, who could be an oaths commissioner or a
notary public.

AN APPEAL AND A REVISION

The two i.e. an appeal and a revision are

different concepts and have been enacted
for different purposes. Their goals are different and
they serve different purpose's and operate
in different spheres.
Appeal is a genus and revision is a species thereof.
An appeal covers a wider field. A party can approach
a superior Court by way of an appeal en a point of
law as well as on facts. Once an appeal is dismissed
party has got right to prefer a second appeal.
However, this is not the case with the revision. The
scope of revision is narrower in comparison to
an appeal.

AN APPEAL AND A REVISION

Appeal: Appeal is a process of re-examination of the judgment

and decree, or order or the decisions passed by the original court
is a suit or in a case. The expression appeal has not been
defined in the code, but it may be defined as the judicial
examination of the decision by a higher court of the decision of an
inferior court.
Revision: Revision is re-working and re-writing. Revision,
meaning "to see again," takes place during the entire writing
process as we change words, rewrite sentences, and shift
paragraphs from one location to another in our essay. Revision
means the action of revising, especially critical or careful
examination or perusal with a view to correcting or improving.
The distinction between the appeal and revision in the following:
(1) An appeal lies to a superior court, which may not necessary
be a High Court, while a revision application under the code lies
only to the High Court/Sessions Judge.

AN APPEAL AND A REVISION

An appeal lies only from the decrees and
appealable order, but a revision application
lies from any decision of a court subordinate
to the High Court from which no appeal lies
to the High Court or to any subordinate court.
A right of appeal is a substantive right
conferred by the statute, while the revisional
power of the High Court is purely
discretionary.

AN APPEAL AND A REVISION

The grounds for an appeal and revision application

are also different. An appeal lies on a question of fact
or law or of fact and law, while a revision application
lies only on the ground of jurisdictional error.
In case of appeal the memorandum of appeal must
be filed before the appellate court by the aggrieved
party, but filing of an application is not necessary in
case of revision.
Ordinarily appellate jurisdiction involves rehearing on
question of law as well as on facts of the case
whereas revisional jurisdiction involves only the
question of law and this jurisdiction is never
considered a rehearing.

Bench
The composition of judges sitting to hear a matter in
court. In the High Court, judges can sit singly, in division
benches of two judges or in full benches of three or more
judges. In the Supreme Court, the vacation judge or judge
in chambers may sit singly; division benches comprise
two or three judges; constitution benches five or more
judges. The largest bench constituted in the Supreme
Court has been of thirteen judges for the Kesavananda
Bharati case in 1973. One or more judges in a case may
give judgement, but it is the majority opinion that is the
judgement of the Court. A smaller bench is bound by the
judgement of a larger bench; the judgement of a bench
can only be overruled by the judgement of a larger bench

Caveat
Where it is apprehended that an opposite party may file a
case, a party may file a document requesting the court
that no order be made in the case without hearing the
caveator.
Caveator
A party who files a caveat.
Commission
A commission is appointed by a court to ascertain or
investigate facts needed to decide a case. A commission
is usually given specific terms of reference. Members of a
commission have been chosen from amongst experts,
academics, social activists/workers, advocates, judges
and others. Costs of the commission are usually borne by
the State. Such commissions have often been appointed
in PILs.

Court Fees
These are mandatory charges payable by
affixing judicial stamps on petitions,
applications and various kinds of documents
before they are filed in a court. It is only in
legal aid matters that the petitioners are
exempt from paying these fees.

Contempt of Court
A party wilfully disobeying an order of a court can be held
in contempt of that court. Under the Contempt of Courts
Act, 1971 this is defined as civil contempt.
Any act that lowers the authority of the Court or interferes
with the course of justice is defined as criminal contempt.
Each court has the power to punish anyone committing
contempt of a court and in some cases the Court can
issue suo motu notice of contempt. Under Article 129 of
the Constitution, the Supreme Court is given the power to
punish for contempt; under Article 215 of the Constitution
the High Court is given similar powers.

DISCHARGE AND ACQUITTAL

If the accused is allowed to be withdrawn

from prosecution prior to framing of charge,
this is a discharge, while in cases where
such withdrawal is allowed after framing of
charge, it is acquittal

Decree
The formal expression of an adjudication which,
so far as regards the Court expressing it,
conclusively determines the rights of the parties
with regard to all or any of the matters in
controversy in the suit and may be either
preliminary or final.
Estoppel
A legal principle that bars a party from denying
or alleging a certain fact owing to that partys
previous conduct, allegation, or denial.

Ex gratia
Translates from Latin as out of grace.
Where a court directs that a payment be
made to a party ex gratia, it may not be
adjusted against any legal right or claim of
that party.
Ex-parte
In absence of the opposite side or party.

High Court
Article 214 of the Constitution provides that
each state shall have a High Court. This is
the highest court in a state and is
subordinate only to the Supreme Court of
India.

The powers of the High Court are broadly

categorized as judicial and administrative. In
its judicial function the High Court can be
approached directly (eg. writ petitions), or in
appeals or revisionsboth civil and criminal.

In its administrative function the High Court

supervises the functioning of the lower
judiciary in the State. In the civil side, in an
ascending order of hierarchy, is the Civil
Judge (Junior Division), Civil Judge (Senior
Division), the Additional District Judge and
the District Judge; the criminal side includes
Metropolitan Magistrates, Chief Metropolitan
Magistrates, Additional Sessions Judges and
the Sessions Judge.

The powers of a High Court do not extend

beyond the territory of the State. While every
decision of the Supreme Court is binding on
the High Courts, the decisions of one High
Court is not binding on the other. The High
Court is a court of record

Infructuous
A petition or application to the court becomes
infructuous when the fundamental premises upon
which a petition is based no longer exist or where the
relief sought has already been granted to the
petitioner
Issue
Notice
When a Court decides to consider a case it asks the
respondents to explain why the case should not be
admitted (show cause). This is done by a notice sent
to the respondents which gives the details of the case
and the next date of hearing alongwith a copy of the
petition. If the respondent does not appear on this
date, the court may proceed ex parte

Judgment
The final order of a court in a case which,
while giving reasons, conclusively decides
the rights of parties in the case, resolves the
dispute and grants reliefs
Judgment-debtor
Any person against whom a decree has been
passed or an order capable of execution has
been made

Litigation
The totality of the legal proceedings in any dispute.
Locus
Standi
Translated from Latin as place of standing, locus standi
gives the right to pursue a litigation. Under this rule, only
a person or group of persons affected by the issue may
petition the Court.
A petition may be dismissed on the preliminary ground
that the petitioner lacks locus standi. However, in PIL, the
locus standi of public spirited persons to petition on behalf
of others has been recognized.
This relaxation of the rule of standing is an important
feature of PILfor instance, journalists, lawyers,
politicians, social activists, students, or any concerned
individual not acting for personal interest or gain, and not
as a busy body, have been given standing

Mesne-profits
Those profits which the person in wrongful
possession of such property actually received or
might with ordinary diligence have received
therefrom, together with interest on such profits,
but shall not include profits due to
improvements made by the person in wrongful
possession;
Order
Any oral or written direction given by a Court or
any authority which is to be obeyed

Petition
A written document filed in a court asserting a claim or a right and
seeking relief on legal grounds.
Res
Judicata
A legal principle which prevents a party to a case which has been
finally decided from bringing an action on the same issue. For
example, a case is barred by res judicata if an earlier case
between the same parties has decided upon the same points.
This is embodied in Section 11 of the Code of Civil Procedure,
1908.
Revision
Orders that cannot be appealed against can be revised by the
High Court on specific grounds, as provided in S 115 of the Code
of Civil Procedure, 1908 and Ss. 397 and 401 of the Code of
Criminal Procedure, 1973.

Review
A court has the power to review its orders on
specified grounds, as provided by law.
Generally the same court which passed the
order or judgement in a case reviews its
decision.
There is, however, no inherent power in a
court to review its decisions. The power has
to be given by statute or be found in the
Constitution.

ARTICLE 136
Special
Leave
Petition
under Article 136 the SC is authorized to grant
in its discretion special leave to appeal from (a)
any judgment, decree, determination, sentence
or order, (b) in any case or matter, (c) passed or
made by any court or tribunal in the territory of
India.
The correctness of any order made by any court
or tribunal can be questioned by filing a petition
in the Supreme Court under Article 136 of the
Constitution. If the Supreme Court grants
permission, i.e. "leave", the petition is registered
as an appeal.

Stay
Order
A party filing a petition may require some immediate
relief, even before the respondents can be heard or a
final decision given. An application is filed seeking an
interim order either to prevent the respondents from
performing an action that will affect the rights of the
petitioner or to prevent an order from being carried
out.
Sub
judice
A matter pending decision by a Court. Parties to such
a matter are required not to do anything that would
affect the outcome of the case.

Suo

Motu

The Court may take action on its own when

facts requiring legal intervention reach its
notice. The Court is then said to be acting
suo
motu.

SUPREME COURT
The highest court in the country constituted
under Article 124 of the Constitution. Its
decisions are law under Article 141 and are
binding on all lower courts. It has unlimited
powers to do complete justice. It exercises
original as well as appellate jurisdiction. Under
Article 143 the President of India can ask the
Supreme Court for an opinion on questions of
law or fact.

SUPREME COURT

States can file suits against each other or against the

Union of India under Article 131. The Supreme Court
can transfer cases to itself from the High Courts or
from one High Court to another under Article 139A of
the Constitution.
It can also transfer civil cases from one Court to
another under S 25 of the Code of Civil Procedure,
1908, and likewise criminal cases under S 406 of the
Code of Criminal Procedure, 1973. Apart from special
leave petitions, in certain instances, appeals can be
filed directly against the judgments of lower courts
and tribunals.

Petitions challenging the election of the

President or Vice-President of India are also
filed directly in the Supreme Court. The
chairperson of a public service commission
may be removed only after an inquiry by the
Supreme Court. The Supreme Court has a
sanctioned strength of 31 judges, headed by
the Chief Justice of India. The seat of the
Supreme Court is New Delhi and its
language is English

Statute
A codified law that is enacted by the Parliament or a
State Legislature. A statute may provide for the
making of Rules and Regulations by the executive to
facilitate its implementation.
Ultra vires
Outside the power of.
Void
One that law regards as never having taken place
Voidable
Capable of being set aside as void at the option of a
party.

COGNIZABLE AND NON COGNIZABLE OFFENCE

Cognizable offences: An offence, where a
police offer can arrest without a warrant.
Non-cognizable offences: An offence,
where a police officer cannot arrest without a
warrant.

COGNIZABLE OFFENCE

Cognizable offences are those where a police officer

can arrest without warrant.
And such cases, after arrest has been made, the
accused will be produced before a magistrate, and he
may require the police officer to investigate the
matter.
After investigation, if the case is made out, i.e. charge
sheet filed goes against accused, the magistrate can
order for arrest.
During the pendency of trial, bail application can be
moved before the concerned magistrate.
Cognizable offences are both bailable, and nonbailable.

EXAMPLES OF COGNIZABLE OFFENCES

Offences of waging or attempting to wage war,
or abetting the waging of war against the
government of India.
Wearing the dress or carrying any token used
by a soldier, sailor or airman with intent that it
may be believed that he is such a soldier, sailor
or airman.
Rioting armed with deadly weapon.
Hiring, engaging or employing person to take
part in an unlawful assembly or taking part in
self.

Being or expecting to be a public servant, and taking, and

taking a gratification other than legal remuneration in
respect of an official act.
Public servant obtaining any valuable thinks, without
consideration, from a person concerned in any
proceeding or business transacted by such public
servant.
Counterfeiting, or performing any pat of the process of
counterfeiting Indian coin.
Having possession of a counterfeit government stamp.
Making or selling false weights or measures for fraudulent
use.
Negligently doing any act known to be likely to spread
infection of any disease dangerous to life.
Causing a disturbance to an assembly engaged in

NON- COGNIZABLE OFFENCE

Non cognizable offences are those, where

a police officer cannot arrest without a
warrant.

Examples:
Owner or occupier of land not giving information of
riot etc.
A public servant disobeying a direction of the law
with intent to cause injury to any person.
A public servant unlawfully engaging in trade.
Bribery during elections.
Making any false statement in connection with an
election.

EXAMPLES OF NON-COGNIZABLE OFFENCES

Absconding to avoid service of summons or other

proceeding from a public servant, like where
summons or notice require attendance in person etc,
in a court of justice.
Refusing to take oath when duly required taking oath
by a pubic servant.
Obstructing public servant in discharge of his public
functions.
Giving or fabricating false evidence in a judicial
proceeding.
False claim in a court of justice.
Fraudulent use of false instrument for weighting.

EXAMPLES OF NON-COGNIZABLE OFFENCES

Selling any food or drink as food and drink
knowing the same to be noxious.
Offering for sale or issuing from a dispensary
any drug or medical preparation known to have
been adulterated.
Voluntarily causing hurt on grave and sudden
provocation, not intending to hurt any other than
the person, who gave the provocation.
Buying or disposing of any person as a slave.
Dishonest misappropriation of movable property,
or converting it to one's own use.

FIR
What is First Information Report (FIR)?
Report pertaining to occurrence of a cognizable
offence, received at the Police Station is called
First Information Report, popularly known as
FIR. Since it is the first information about the
cognizable offence, it is called First Information
report.
On receipt of this information police registers
the report in a FIR Register and begins the
investigation of the crime.

FIR
It is an information given under sub-section (1)
of section 154 CrPC
It is the earliest and the first information of a
cognizable offence recorded by an officer-incharge of a police station. It sets the criminal
law in motion and marks the commencement of
the investigation which ends up with the
formation of opinion under section 169 or 170
CrPC, as the case may be, and forwarding of a
police report under section 173 CrPC.

FIR

What to do if the Police Station refuses to register

the FIR?
If the Police Station refuses to register FIR,
substance of the information in writing can be sent by
post to the Assistant Commissioner of Police or
Deputy Commissioner of Police of the respective
zone or Commissioner of Police. If satisfied that the
information discloses the commission of a cognizable
offence, shall get the FIR registered and investigated.
If the FIR is still not filed, you may file an RTI OR file
a complaint to the State Home Ministry, OR file a
private complaint with the Magistrate u/s 190 of CrPC
OR file a Vigilance/ Anti-Corruption Complaint against
the police officers.

NC
What the Police Station does with a
complaint pertaining to Non-cognizable
offence?
As per Cr.PC, Police Station is required to
record an abstract of such complaint in the
General Diary which is called N.C. and advise
the complainant to file the complaint in the
concerned court as police is not empowered to
initiate action in such matters without the
directions of the court.
A copy of the entry made in the General Diary
may be provided to the complainant free of cost.

LALITA KUMARI V. GOVT OF UP

In a landmark Judgement, a Constitution

Bench of Supreme Court of India has held
that Police Officers Are Bound To Register
FIR Upon Receiving Information of
Commission of a Cognizable Offence in
India--Lalita Kumari v. Govt Of UP (2013) SC
(5J).

The important issue which arises for consideration in

the referred matter was whether a police officer is
bound to register a First Information Report (FIR)
upon receiving any information relating to
commission of a cognizable offence under Section
154 of the Code of Criminal Procedure, 1973 (in short
the Code) or the police officer has the power to
conduct a preliminary inquiry in order to test the
veracity of such information before registering the
same?
The Bench after analysing the history of provisions
related to FIR observed that the legislative intent in
both old codes and the new code manifests for
compulsory registration of FIR in a case of cognizable

By Criminal Law (Amendment) Act 2013, Section 166A

was inserted in Indian Penal Code, 1860. The insertion of
Section 166A in the IPC vide Criminal Law (Amendment)
Act 2013, must be read in consonance with the provision
and not contrary to it. The insertion of Section 166A was
in the light of recent unfortunate occurrence of offences
against women.
The intention of the legislature in putting forth this
amendment was to tighten the already existing provisions
to provide enhanced safeguards to women.
Therefore, the legislature, after noticing the increasing
crimes against women in our country, thought it
appropriate to expressly punish the police officers for their
failure to register FIRs in these cases. No other meaning
than this can be assigned to for the insertion of the same.

BAILABLE AND NON-BAILABLE OFFENCE

What is a Bailable offence?

In bailable offences, the accused can claim bail as a
matter of right. Police is supposed to release such an
accused on bail if he is prepared to give bail at any
time while he is in the custody of a Police Officer.
What is a Non-Bailable offence?
In non-bailable offences, the accused is not entitled
to bail as a matter of right. Police invariably does not
take bail in such cases and only the Court grants bail.
The list of bailable and non-bailable offences is given
in the first schedule of the Cr.PC.

INVESTIGATION, INQUIRY AND TRIAL

The Code of Criminal Procedure, 1973 (the CrPC) is

the procedural law providing the machinery for
punishment of offenders under the substantive
criminal law, be it the Indian Penal Code, 1860 or any
other penal statute.
The CrPC contains elaborate details about the
procedure to be followed in every investigation,
inquiry and trial, for every offence under the Indian
Penal Code or under any other law.
It divides the procedure to be followed for
administration of criminal justice into three stages:
namely investigation, inquiry and trial.

INVESTIGATION
Investigation is a preliminary stage conducted
by the police and usually starts after the
recording of a First Information Report (FIR) in
the police station.
If the officer-in-charge of a police station
suspects the commission of an offence, from
statement of FIR or when the magistrate directs
or otherwise, the officer or any subordinate
officer is duty-bound to proceed to the spot to
investigate facts and circumstances of the case
and if necessary, takes measures for the
discovery and arrest of the offender.

INVESTIGATION
Investigation
primarily
consists
of
ascertaining facts and circumstances of the
case.
It includes all the efforts of a police officer for
collection of evidence:
proceeding to the spot;
ascertaining facts and circumstances;
discovery and arrest of the suspected
offender;

INVESTIGATION
collection of evidence relating to the
commission of offence, which may consist of the
examination of various persons including the
accused and taking of their statements in writing
and the search of places or seizure of things
considered necessary for the investigation and
to be produced at the trial;
formation of opinion as to whether on the basis
of the material collected there is a case to place
the accused before a magistrate for trial and if
so, taking the necessary steps for filing the
charge-sheet. Investigation ends in a police
report to the magistrate.

INQUIRY AND TRIAL

Inquiry consists of a magistrate, either on
receiving a police report or upon a complaint
by any other person, being satisfied of the
facts.
Trial is the judicial adjudication of a persons
guilt or innocence; Under the CrPC, criminal
trials have been categorized into three
divisions having different procedures, called
warrant, summons and summary trials.

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), "warrantcase" 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.

WARRANT CASE
A warrant case relates to offences punishable
with
death,
imprisonment
for
life
or
imprisonment for a term exceeding two years.
The CrPC provides for two types of procedure
for the trial of warrant cases by a magistrate,
triable by a magistrate, viz., those instituted
upon a police report and those instituted upon
complaint.
In respect of cases instituted on police report, it
provides for the magistrate to discharge the
accused upon consideration of the police report
and documents sent with it.

WARRANT CASE
In respect of the cases instituted otherwise than
on police report, the magistrate hears the
prosecution and takes the evidence. If there is
no case, the accused is discharged.
If the accused is not discharged, the magistrate
holds regular trial after framing the charge, etc.
In respect of offences punishable with death, life
imprisonment or imprisonment for a term
exceeding seven years, the trial is conducted in
a sessions court after being committed or
forwarded to the court by a magistrate.

SUMMONS CASE

A summons case means a case relating to an offence

not being a warrant case, implying all cases relating
to offences punishable with imprisonment not
exceeding two years.
In respect of summons cases, there is no need to
frame a charge.
The court gives substance of the accusation, which is
called notice, to the accused when the person
appears in pursuance to the summons. The court has
the power to convert a summons case into a warrant
case, if the magistrate thinks that it is in the interest of
justice.

SUMMARY TRIAL
The high court may empower magistrates of first
class to try certain offences in a summary way.
Second class magistrates can summarily try an
offence only if punishable only with a fine or
imprisonment for a term not exceeding six
months.
In a summary trial, any CJM,MM,Magistrate first
Class empowered by HC may try summarily all
or any of the offence not punishable with death,
life imprisonment or imprisonment for a term
exceeding two years;

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 noncompoundable