Criminal procedure code, 1973.

Module 02

Cognizable Offence Non-Cognizable Offence

Can be registered and investigated by the police Requires a warrant from the court to be registered
without a warrant and investigated
Serious in nature, often involving grave offences Relatively less serious offences
Police have the power of arrest without a warrant Police cannot arrest without a warrant; a court's
permission is required
Examples include murder, rape, kidnapping Examples include defamation, public nuisance
Court's permission is not required for Court's permission is necessary for investigation
investigation or arrest and arrest
No provision for compromise between parties Parties involved can settle the matter through
involved compromise
Substantial police involvement in the Limited police involvement; often rely on
investigation complainant's cooperation
Swift action can be taken by the police to Investigation can be delayed as court intervention
prevent further harm is necessary
Usually non-bailable offences, requiring judicial Can be either bailable or non-bailable, depending
determination for bail on the specific offence
The accused may be remanded into police The accused is not remanded into police custody;
custody for investigation court handles the custody

Summon Warrant
Issued by a court or government agency with the Issued by a judge or magistrate, with the
purpose of compelling a person to appear in court or purpose of authorizing law enforcement to
before a government agency for a specific reason search a specific location or seize specific
such as a deposition, hearing or trial. items such as evidence or contraband.
Non-compliance with a summon may result in a Non-compliance with a warrant may result in
contempt of court charge. a search or arrest by law enforcement.
Often used in civil cases to bring parties before a Often used in criminal cases as a means for law
court or government agency for a specific reason. enforcement to gather evidence or seize
property related to a crime.
Can be issued to an individual or organization. Can be issued to an individual or organization.
Can be issued without a prior court hearing, but it is Requires a court hearing or probable cause
up to the court or government agency to determine showing before it can be issued, and must be
the validity of the summon. executed and supervised by law enforcement.
Can be issued by administrative agencies such as tax Issued by a judicial officer such as a judge or
and regulatory agencies as well as courts. magistrate.

Aspect Bailable Offense Non-Bailable Offense

Definition An offense for which bail can be An offense for which bail cannot be granted
granted at the time of arrest or as a matter of right at the time of arrest. The
during the trial process. accused must apply to the court for bail.
Bail Granting Bail can be granted by the police Bail can only be granted by a court of law.
Authority officer or at the police station.
Nature of Crime Typically, less serious and minor Generally, more serious and heinous offenses.
offenses.
Severity of Lesser penalties and punishments Non-bailable offenses usually carry more
Punishment are associated with bailable severe penalties and punishments.
offenses.
Police Arrest Police can arrest without a warrant For non-bailable offenses, police generally
Without Warrant for bailable offenses. require a warrant to make an arrest.
Need for Court For bailable offenses, the accused In non-bailable offenses, the accused must
Proceedings can be released on bail without attend court proceedings and apply for bail in
going through a court trial. front of a judge.
Discretion of the In bailable offenses, the court has In non-bailable offenses, the court must
Court the discretion to grant or deny bail provide strong reasons to grant bail, and it can
based on the circumstances. also deny bail based on the severity of the
crime.
Public Generally perceived as less serious Viewed as more serious crimes, involving
Perception crimes, often involving minor acts that can pose a threat to public safety or
disputes or first-time offenders. have significant consequences.
Examples Simple assault, petty theft, minor Murder, rape, terrorism, drug trafficking, etc.
traffic violations, etc.

Meaning
Compoundable offences are those that can be compromised, i.e. the complainant can agree
to take back the charges levied against the accused, whereas, non - compoundable offences
are the more serious offences in which the parties cannot compromise.
Compoundable offences
Compoundable offences are those offences where, the complainant (one who has filed the
case, i.e. the victim), enters into a compromise, and agrees to have the charges dropped
against the accused. However, such a compromise should be a "Bonafide," and not for any
consideration to which the complainant is not entitled.

Section 320 of the CrPC looks at the compounding of offences. Compoundable offences are
less serious criminal offences and are of two different types mentioned in the tables in Section
320 of the Criminal Procedure Code, as follows:
1. Court permission is not required: These are the offences, compounding of which do not
require prior permission from the court.

Examples of these offences are:

adultery,
causing hurt,
defamation,
criminal trespass, etc.

2. Court permission is required: These are the offences, compounding of which require
prior permission of the court.

Examples of such offences are:

theft,
criminal breach of trust,
voluntarily causing grievous hurt,
assault on a woman with the intention to outrage her modesty,
dishonest misappropriation of property amongst others, etc.
Application for compounding the offence shall be made before the same court before which
the trial is proceeding. Once an offence has been compounded it shall have the same effect,
as if, the accused has been acquitted of the charges.

ExamplesOfCompoundableOffences:
 Uttering words etc, with deliberate intent to wound the religious feelings of any
person causing hurt.
 Criminal or house trespass.
 Criminal breach of contract of service.
 Printing or engraving matters, knowing it to be defamatory.
 There are some offences, which although are compoundable and can be
compounded only with the permission of the court.
 These offences should be compounded before the trial begins.
 Also where the accused has already been convicted, and an appeal is pending, the
permission of the court is required for the compounding of such offences.
 The reason for seeking permission from the court is that these offences are
grievous in nature, and are bad examples in society.

Non-Compoundable Offences
Non-Compoundable offences are some offences, which cannot be compounded. They can
only be quashed. The reason for this is, because the nature of offence is so grave and criminal,
that the Accused cannot be allowed to go scot-free. Here, in these types of cases generally, it
is the "state", i.e. police, who has filed the case, and hence the question of the complainant
entering into compromise does not arise.

All those offences, which are not mentioned in the list under Section (320) of CrPC, are non-
compoundable offences.

Under a non-compoundable offense, a private party as well as the society, are affected by
such offenses.

In a Non-compoundable offense, no compromise is allowed. Even the court does not have
the authority and power to compound such offense. A full trail is held which ends with the
acquittal or conviction of the offender, based on the evidence given.

Example Of Non-Compoundable Offences (Where Court's Permission is Required):

 Voluntarily causing hurt by dangerous weapons or means.
 Causing grievous hurt by doing an act so rashly and negligently as to endanger
human life or the personal safety of others.
  Wrongfully confining a person for three days or more.
 Assault or criminal force to woman with intent to outrage per modesty.
 Dishonest misappropriation of property.
 Criminal breach of trust by a cannier--- wharfinger-- etc, where the value of the
property does not exceed two hundred and fifty rupees.
 Cheating and dishonestly inducing delivery of property or the making, alteration
or destruction of valuable security.
 Fraudulent execution of a deed of transfer containing a false statement of
consideration.
 Mischief by killing or maiming cattle etc of any value of fifty rupees or upwards.
 Counterfeiting a trade or property mark used by another.
 Uttering words or sounds or making gestures or exhibiting any object intending
to insult the modesty of a woman or intruding upon the privacy of a woman.

Difference Between Compoundable and Non-Compoundable Offences

The difference between Compoundable and Non-Compoundable offences has been listed
below:
1. Nature of Crime: In a compoundable offence, the nature of the offence is not so serious.
While, in the non-compoundable offence, the nature of the offence is serious.

2. Withdrawal of Charges: In compoundable offence, charges made against the accused can
be withdrawn. While in the non-compoundable offence, the charges against the accused
cannot be withdrawn.

3. Affected parties: In compoundable offence, it impacts only to a private person. While in

the non-compoundable offence it affects both, the private persons as well as the society at
large.

4. Compoundable: In compoundable offence, settlement can be done either with permission

or without permission of the court. While in the non-compoundable offence, the offence
cannot compound, it can only be quashed.

5. Filing of the case: In compoundable offence, cases are generally filed by a private person.
While in the non-compoundable offence, cases are filed by the state.

Relevant Case Laws

Rameshchandra J, Thakkar vs. A. P. Jhaveri & Anr it was held that “If an acquittal is
based on the compounding of an offence and the compounding is invalid under the law, the
acquittal would be liable to be set aside by the High Court in the exercise of its revisional
powers.” If there any non-compoundable offence has been compounded, against the law and
the acquittal of the accused made is based on the same compromise, the High Court has the
power to set aside such order.

Narinder Singh v State of Punjab: In the above case, all the principles are taken into
consideration by the Supreme Court, and several judgments led down regarding compromise
in non-compoundable cases and laid down the following guidelines regarding quashing
criminal proceedings in case of non-compoundable offences by high courts when invoking
their inherent powers provided under Section 482 of the CrPC.

Meaning of Summons Case

A summons is a document issued by a court that calls upon a person to come before a judge
and show a certain document.

According to Section 61 of the Criminal Procedure Code (Cr. PC), a valid summons, issued by
a judge, should have two identical copies. Both copies must be signed by the Judge’s President
and bear the court’s seal. If a summons lacks these elements, it’s considered invalid and the
person it’s meant for can refuse to accept it. The summons should clearly state the court’s
name, the location, date and time when the summoned person needs to appear.

Trial of Summon Case

Section 251 of the law requires the court to explain the case details to the accused and record
their plea. This was confirmed in the State of Gujarat v. Lalit Mohan case. Although this
section doesn’t demand the framing of charges, it does require informing the accused when
they appear in court. However, in the Manbodh Biswal v. Samaru Pradhan case, the court
explained that if not following this provision doesn’t harm the accused, it won’t invalidate the
trial.

This section instructs the magistrate to ask the accused if they plead guilty or if they have a
defence. If the accused pleads guilty, Section 252 is relevant, which leads to their conviction
after recording the plea and examining both prosecution and defence witnesses. In
the Thangjam v. Irabot Singh case, it was clarified that a joint statement by all accused
persons can’t be treated as a guilty plea.

Now, if the accused pleads ‘not guilty,’ Section 254 comes into play. If the accused hasn’t been
convicted under Section 252 or 253, the magistrate must hear the prosecution and their
witnesses. The accused can’t be acquitted without examining the prosecution’s witnesses
because the magistrate is obligated to examine all witnesses presented by both sides. Failure to
do so would make the criminal trial incorrect under Section 465. Upon request by either party,
the magistrate should summon witnesses and prepare a record of the evidence under Section
274 of the law.

What are Warrants Cases?

A warrant is an official order that directs a specific person to apprehend a suspect and bring
them to court for legal proceedings. This order can only be executed if there are valid reasons
and it’s issued by a Magistrate. The warrant must have the court’s official seal and be signed
by a presiding court officer. It remains valid until the same court that issued it cancels it.

The court can include in the warrant that a person can avoid arrest by paying a certain amount
as a guarantee to appear in court. If necessary, someone who is not a police officer can carry
out the immediate arrest. A Magistrate has the authority to execute a warrant on anyone
entering their jurisdiction and the person the warrant is issued for can be found anywhere within
that jurisdiction.

When a person is arrested, they should be informed of the reason for their arrest and if
necessary, the warrant can be shown to them.

In some cases, warrant cases can be given to a police officer who operates outside the
jurisdiction of the Judicial Magistrate, but this requires approval from either the Executive
Magistrate or the police officer in charge of the police station.

Trial of Warrant Cases

Case Initiated on a Police Report
Section 238 of the law states that when a warrant case is initiated based on a police report and
the accused is brought before the magistrate, the magistrate must follow the rules set out in
Section 207 of the law. Section 239 discusses when an accused person can be discharged. It
states that if the magistrate, after examining the police report and the related documents
provided under Section 173 and considering arguments from both sides, finds that the charges
against the accused are baseless, then the accused may be discharged. In the case of Century
Spinning and Manufacturing Co. Ltd v. State of Maharashtra, the court emphasised that
this provision must be read in conjunction with Section 240. The court has a duty to carefully
consider and frame charges.

Section 240 deals with the formal framing of charges. If the magistrate believes that there are
sufficient grounds to believe the accused committed the offence, they must formally frame
charges in writing. It’s important to note that Section 240 allows the magistrate not only to
consider the police report and associated documents under Section 173 but also to question the
accused if they choose to do so.

Similar to Section 252 for summon cases, Section 241 applies to warrant cases where the
accused pleads guilty. Section 242 outlines the procedure when the accused pleads ‘not guilty.’
In accordance with this provision, the magistrate sets a date for the examination of witnesses
from both sides. Section 242 primarily deals with the prosecution’s evidence, while the
procedure for presenting the defence’s evidence is explained under Section 243 of the law.
Cases Initiated Otherwise Than on Police Reports
Sections 244 to 247 in Chapter XIX specifically address the procedure for warrant cases
initiated other than on a police report. Section 244 outlines the magistrate’s duty to ask the
prosecution to produce witnesses to be examined before closing the evidence and framing the
charge. It’s worth noting that the magistrate is not obligated to summon witnesses on their own;
this responsibility lies with the prosecution.

Section 245 explains when the accused may be discharged. The court clarified in the case of
Muhammad v. Balkrishna that Section 245 does not give the magistrate arbitrary power to
discharge; there must be substantial reasons or evidence showing that no offence has been
committed. If all the evidence presented by the prosecution within four years of the case’s
initiation doesn’t provide reasonable grounds for discharging the accused, the magistrate can,
at their discretion, acquit the accused. Conversely, if the magistrate believes there are
reasonable grounds to believe the accused committed the offence after considering the
evidence, Section 246 comes into play, which outlines the procedure when the accused is not
discharged.

Section 247 deals with the evidence for the defence, which occurs after the charges have been
framed. The accused is given the opportunity to cross-examine the prosecution’s witnesses.
Finally, like any other trial, a warrant trial concludes with either the acquittal or conviction of
the accused, as per Section 248 of the law.

The Difference Between Summon Cases and Warrant Cases

Nature of Offence
The primary and most significant difference between summon cases and warrant cases lies in
the nature of the offence. Summon cases are generally reserved for minor or petty offences,
such as traffic violations, minor breaches of the law or small-scale disputes.

Warrant cases, on the other hand, encompass more serious offences, including felonies and
crimes that carry substantial penalties, such as murder, robbery and sexual assault.

Initiation of Proceedings
In summon cases, legal proceedings are initiated by the filing of a complaint by the aggrieved
party or a law enforcement officer. The court then issues a summons to the accused, compelling
them to appear in court on a specified date.

In warrant cases, the proceedings often commence with the filing of a First Information Report
(FIR) by the police or a complaint by the victim. The court then issues an arrest warrant,
authorising the police to apprehend the accused.

Court’s Involvement
Summon cases typically require less direct involvement of the court, as the accused is expected
to voluntarily appear before the court in response to the summons.
In warrant cases, the court plays a more active role in overseeing the arrest and subsequent
legal proceedings. This increased court involvement is due to the gravity of the offences
involved.

Bail Provisions
In summon cases, the accused often has the opportunity to seek bail easily. Since summon
cases involve less severe offences, the court may grant bail to the accused without stringent
conditions.

Warrant cases, being more serious, may involve stricter bail conditions. Courts may be more
cautious when granting bail to accused individuals facing warrant cases, especially if they are
charged with heinous crimes.

Trial Procedure
Summon cases generally follow a simpler and more expedited trial procedure. The focus is on
resolving the matter efficiently and swiftly.

Warrant cases often entail a more elaborate trial process, including the examination of
witnesses, cross-examinations and the presentation of substantial evidence. These cases are
more likely to proceed to a full-fledged trial.

Legal Representation
While both summon cases and warrant cases allow for legal representation, the significance of
legal counsel may be greater in warrant cases, given the complexity and severity of the charges
involved.

Penalties
The penalties imposed in summon cases are typically less severe, involving fines, warnings or
limited imprisonment.

Warrant cases, due to the gravity of the offences, can result in substantial prison sentences,
including life imprisonment or even the death penalty in some jurisdictions.

Appeal Process
The appeal process may also differ between summon cases and warrant cases. In warrant cases,
the appeal process may be more protracted and involve higher courts due to the seriousness of
the charges.

In summon cases, the appeal process may be relatively straightforward and handled at lower
judicial levels.

Examples
Examples of summon cases include minor traffic violations, public nuisances and petty thefts.
Examples of warrant cases encompass offences like murder, rape, drug trafficking and serious
financial fraud.

Module 03

investigation
Introduction
An investigation is an important segment of criminal procedure. The first step after a crime is
committed or information received by a police officer about the commission of an offence is
“investigation.” The purpose is to identify the offender and proceed him for trial so as to serve
him with punishment as per the provisions of the Code. Section 156 of the Code of Criminal
Procedure confers powers on police officers to investigate cognizable cases. In Non Cognizable
cases, the police officer has no authority to investigate without warrant and has to obtain a
warrant under Section 155 (2) of the Code. The term “investigation” has been defined in section
2(h) of the Code. Chapter XII (Sections 154 to 176) of the Code deals with information to
police and their powers to investigate.

Meaning and Definition

The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal procedure,
Investigation includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised by
a Magistrate in this behalf. [1]

The investigation of an offence consists of:

1. Proceeding to the spot.

2. Ascertainment of facts and circumstances of the case.
3. Discovery and arrest of the suspect.
4. Collection of evidence which may include:
o Examination of persons concerned and reducing their statement to
writing.
o Search and seizure of places and things respectively considered
necessary.
5. Formation of opinion as to whether there is a case for trial, and taking necessary
steps accordingly. [2]
Cognizable and Non-Cognizable Offence

The cognizable offence has been defined in Section 2(C) of the Code, wherein a Police officer
can arrest without warrant. The offence is of serious nature and is a public wrong, where the
prosecution is done at the discretion of the state. Punishment is given with imprisonment of 3
years or more and with or without fine. Example – Dowry, Rape, Murder, etc.

Non Cognizable offence and case have been defined in Section 2 (l) of the Code, wherein the
police cannot arrest without warrant. The offence is less serious in nature and the prosecution
is done at the initiative of the parties. Punishment may be given not exceeding 3 years of
imprisonment. Example – Assault, Forgery, Defamation, etc.

Information to the Police Officer

Section 154 of the code talks about when information is given as a cognizable offence. The
information must be given by the informant to the officer in charge of a police station in writing
or must be reduced into writing by the officer in charge of the police station. The written
information has to be read over to the informant and be signed by him, which is called “First
Information Report.” When the information is given by a woman against whom any of the
offences under Sections 326-A, 326-B, 354, 354-A to 354-D, 376, 376-A to 376-E or 509 IPC
is alleged to have been committed or attempted, such statement shall be recorded by a woman
police officer.

After the information has been received by the police officer, he shall start his investigation,
provided he has reasons to suspect that a cognizable offence has been committed.

Power of Police to Investigate

Section 156 of the code empowers the officer in charge of a police station to investigate a case
in his territorial jurisdiction without the order of the Magistrate if the offence is cognizable in
nature. The officer may also initiate an investigation on the orders of the Magistrate empowered
under Section 190.

Cases consisting of both Cognizable and Non-Cognizable Offences

According to Section 155(4), when two or more offences are there in a case, of which at least
one is of cognizable nature, and other of non-cognizable nature, then the entire case has to be
dealt as a cognizable case, and the investigating officer will have all the powers and authority
as he has in investigating a cognizable case.
Procedure of Investigation
Section 157 of the Code lays down the procedure of investigation to be followed by the police,
for collection of evidence. The investigation of a cognizable case begins when a police officer
in charge of a police station has reason to suspect the commission of a cognizable offence on
the basis of FIR or any other information so received. It requires that prompt intimation of the
FIR be sent to the Magistrate. The officer shall then proceed in person to the spot for
investigation of facts and circumstances, or shall depute one of his subordinate officers for the
same, and if required, measures for the discovery and arrest of the person shall be taken.

When the information received by the police officer is not of serious nature, the officer need
not proceed in person or depute some subordinate officer to investigate on the spot. And if no
sufficient ground exists for entering on an investigation, he shall not investigate the case. And
shall state in its report for not complying with the requirements of this section, and notify the
informant that he will not investigate the case or cause it to be investigated.

He shall then send this report to the Magistrate empowered to take cognizance of such offence.

Sending a Report to the Magistrate (Section 158)

A report is sent to the Magistrate which is called the police report. It is sent by the superior
police officer, so as to make the Magistrate aware that a particular case is being investigated
by a police officer. The main objective of sending a report is to enable the Magistrate to control
the investigation and give directions if required under Section 159 of the Code.

The report should be sent to the Magistrate without any delay. In Swati Ram v. State of
Rajasthan, it was held that mere delay in sending the report does not throw away the
prosecution case in its entirety.

At different stages of an investigation, different reports are to be submitted by the police to the
Magistrate. These reports are:

Section 157 of the CrPC requires the officer in charge of the police station to submit a report
to the Magistrate, called a preliminary report.

Section 168 of the CrPC requires a subordinate officer to submit a report to the officer in charge
of the police station.

Section 173 of the CrPC requires that a final report is to be submitted to the Magistrate as after
the investigation gets over.
Order of Investigation by the Magistrate
The Magistrate, under Section 159, has been empowered, if he feels necessary, after receiving
the report to direct investigation, or to conduct himself or direct a subordinate Magistrate to
hold a preliminary inquiry. And as held by the Supreme Court, the Magistrate has no power to
stop the investigation after it has started. [3]

Attendance of Witnesses
The police officer making the investigation is empowered under Section 160 to require the
attendance of any person as a witness who is acquainted with the facts and circumstances of
the case. The above-mentioned section also provides that no male person or woman who is
under the age of fifteen years shall be required to attend any place other than the one in which
the male person or women resides. The State Government shall make rules for the payment of
reasonable expenses incurred by persons for attending any place other than their residence.

Examination of Witnesses
Any police officer who is in charge of the investigation or any other officer who is acting on
the request of an officer in charge shall and is empowered to examine a witness or person who
is acquainted or aware of the facts and circumstances of the case put before him. Section 161
of the Code confers powers on police to examine witnesses. The statements of witnesses are
important as they can make a person guilty or innocent. The persons who are being investigated
are expected and bound to answer truly all the questions relating to such cases put before them.
They are not bound to truly answer the questions which would expose them to a criminal charge
or any other charge. After the examination, the police officer making the investigation shall
reduce the number of statements given by the person in the course of the examination. And if
done so, he shall keep a separate record of the same. He is not bound to reduce the statements
into writing but it is preferred that he does so.

Statements to the Police not to be Signed

The statements made by the witnesses during examination need not be signed by him. Neither
should be used at any inquiry or trial. The statements made by the witness can be used in the
court only to contradict him, and not corroborate him. If the witness is brought from the
prosecution side, any part of his statement if proved may be used by the accused and can be
used by the prosecution only with the Court’s permission, to contradict him. That is, statements
made under Section 161 can be used to contradict him.

However, an exception to the above section is: If any statement falls within the provision of
Section 32(1) of the Indian Evidence Act, or if any statement affects the provisions of Section
27 of the Evidence Act.
Recording of Confessions and Statements
Any magistrate whether metropolitan or judicial, if he has jurisdiction or not in the case, is
empowered under Section 164 to record any statement or confession made to him in the course
of the investigation. But a police officer on whom powers of a magistrate have been conferred
for the time being is not empowered to record the same. The magistrate, before recording the
statement is required to explain it to the person giving the statement that he is not bound to give
it and the statements can be used as evidence against him. The magistrate has to make sure that
the person making the confession is doing it voluntarily. The Magistrate cannot authorize the
detention of that person in police custody if the person refuses to give a statement at any time
before the confession is recorded.

Recording of Confession When Magistrate has no Jurisdiction

A Magistrate who records statements and confession when he does not have the jurisdiction to
do so, he shall forward it to the competent Magistrate who has to inquire into the case or by
whom the trial is to be done.

Admissibility of Evidence
The confession recorded under section 164 can be used as substantive evidence, without being
formally proved. Record of such confession is admissible as evidence. Entire confession must
be brought on record. The Court must carefully weigh it with other evidence. The Court may
reject part of it.. Where the confession was found rejected, the convictions based on them could
not be sustained.

Non-confessional statements recorded under section 164 is not substantive evidence. But if the
maker of the statement is called as a witness in the trial, his earlier statement can be used for
contradicting his testimony in the Court under section 145 and 157 of the Evidence Act.

In Balak Ram v. The State of U.P., it was held that evidence of witness cannot be discarded
merely because their statement was recorded under section 164. Their evidence must be
approached with caution.

Search by Police Officer

A police officer is empowered under Section 165 of the Code to search for any place which he
has reasonable grounds to believe that contains something necessary with respect to the
investigation he is authorized to make.

The grounds for issuing a warrant for search are provided in Section 93(1) of the Code The
search is required to be noted in a diary which is prescribed for this purpose, by the state
government.
Procedure of Search
A police officer has to record in writing his reasons for the search, the place to be searched and
the thing that has to be searched in that place, after which he proceeds in person. If the police
officer is unable to do the search himself, then he may, in writing, order his subordinate officer
to conduct the search, directing him to the place to be searched and the thing to be searched
for. And the subordinate officer can then conduct the search on the basis of the written order
given to him. The officer should make a record of the search done and send a report of the same
to the nearest Magistrate who can further furnish it to the owner/occupier of the place searched,
free of cost, on application.

When Investigation is to be Done Outside India

When the investigating officer or any of his superior officer has reasons to believe that
necessary evidence may be available in a place or country outside India, any criminal court
shall issue a letter of request to the authority of that country or place requesting to examine
orally the person who is supposed to be aware of the facts and circumstances of the case and
direct him to produce all the requisite documents in his possession relating to the case being
investigated and also require to forward all the documents and evidence to the court issuing
such letter. The provision is given under section 166.

Procedure to be followed on completion of Investigation (s.169-s.173)

On completion of the investigation, the following procedure is to be followed:

Release of accused when evidence is deficient

When there is not sufficient evidence and reasonable grounds to justify the forwarding of the
accused to the Magistrate, the police officer shall release him on him executing a bond, with
or without sureties, and may direct him to appear before the magistrate when required.

Cases to be sent to Magistrate when evidence sufficient

When the police officer has sufficient evidence and reasonable grounds, he shall forward the
accused to the Magistrate, so that the Magistrate can take cognizance of the offence and try the
accused or commit him for trial. If the offence is bailable, the accused shall be given security
and be released on bail, only to appear before the Magistrate when required, and for his day to
day attendance before the Magistrate.

Diary of proceedings in an investigation (section 172)

This section relates to the contents of a case diary, which every police officer making an
investigation has to maintain. The object of this section is to enable the Magistrate to know
what was the day to day information by a police officer who was investigating the case. Oral
statements of witnesses should not be recorded in this case diary. This diary may be used at
trial or inquiry, not as evidence, but to assist the court in proceeding with the case.

Report of police on completion of the investigation

Final report of a police officer after the completion of the investigation is to be sent to the
Magistrate under Section 173. This report is generally called a “Chargesheet” or “Challan”.

Where a superior officer has been appointed by the State government, the report shall be sent
by him to the Magistrate. And while the orders of the Magistrate are pending, he shall direct
further investigation to the officer in charge of the police station.

If according to the police officer, a part of the statement in the report submitted by him is not
relevant, he shall request the Magistrate to exclude that part and not consider it. Also, further
investigation can be made even after the submission of the report to the Magistrate.

Difference Between Investigation and Inquiry

Points Investigation Inquiry

Meaning The systematic process of gathering The act of asking questions, seeking
information, facts, and evidence to information, or conducting research to
uncover the truth or find answers to a gain knowledge or understanding about
specific issue or crime. a particular subject or topic.
Purpose To uncover and establish facts, gather To seek information, explore a subject,
evidence, and determine the truth or acquire knowledge for educational,
regarding a specific incident, crime, or research, or decision-making purposes.
problem.
Scope Focused on a specific incident, crime, Broader and can cover a range of topics
problem, or allegation. or subjects.
Legal context Often associated with legal proceedings, Can be used in legal contexts, but also
law enforcement, or regulatory bodies. applicable in non-legal settings such as
research, education, and general
exploration.
Methodology Involves collecting evidence, conducting Relies on asking questions, conducting
interviews, analyzing data, and following interviews, research, analysis, and
a structured process to uncover the truth or exploration of information sources to
establish facts. gain knowledge or understanding.
Objectivity Requires impartiality and objectivity to While objectivity is important, inquiries
ensure the investigation is unbiased and can be subjective based on the purpose
based on facts and evidence.
 or perspective of the person conducting
the inquiry.
Context Often carried out in response to specific Can be initiated based on curiosity,
incidents, allegations, or suspicions. academic pursuits, research objectives,
or the need to gather information for
decision-making.
Legal authority Investigations can be conducted by Inquiries can be conducted by
authorized individuals, law enforcement individuals, organizations, academic
agencies, or regulatory bodies. institutions, or any entity seeking
information or knowledge.
Outcome The goal is to establish the truth, gather The outcome is typically gaining
evidence, and make conclusions or knowledge, understanding, or insights
recommendations based on the findings. about a subject or topic, which may
inform decision-making or further
exploration.
Examples Criminal investigations, corporate Research inquiries, academic inquiries,
investigations, forensic investigations. fact-finding inquiries.
Confidentiality Investigations often involve handling Inquiries may or may not involve
sensitive information and maintaining confidential information, depending on
confidentiality to protect the integrity of the nature of the subject or topic being
the process and the parties involved. explored.
Time frame Investigations can be time-consuming, Inquiries can vary in duration, ranging
depending on the complexity of the case or from short-term inquiries to long-term
issue being investigated. research projects.
Legal Investigations can have legal implications, Inquiries may have legal implications if
implications especially in criminal cases or regulatory conducted within a legal or regulatory
investigations. framework, but not always.
Conclusion Investigations aim to reach a conclusion Inquiries may or may not have a specific
based on the gathered evidence and facts. conclusion, as their purpose is often
focused on knowledge acquisition rather
than reaching a definitive outcome.

Arrest
Introduction
An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an
offence. It is done because a person is apprehended for doing something wrong. After arresting
a person further procedures like interrogation and investigation is done. It is part of the Criminal
Justice System. In an action of arrest, the person is physically detained by the concerned
authority.
If we look at the dictionary meaning of the word ‘arrest’ it means to seize or to capture, to bring
to a stop or to make it inactive. From all the meanings it can be deduced that arrest means to
bring a stop to a person’s activity. A person can be arrested by police or Magistrate. But can
an individual arrest another individual? If yes, then when can he be arrested and for what
reason? Does an arrested person has fundamental rights? How can he get it enforced? All these
basic questions regarding Arrest have been answered in this Article.

Significance of the topic

The Arrest is one of the most important subjects of the Criminal Justice System. Why is it
important to study this topic? It is so because an arrest is used as a tool for a person who is
accused of a wrong. It tries to prevent wrong that is happening in society. It is used to create a
sense of fear among the people that if any wrong is committed, a person’s movement will be
restricted to four walls with very basic amenities. A person values his freedom the most and
action of arrest takes this freedom from a person.

The great political philosopher Bolingbroke once said,

“Liberty is to the collective body, what health is to every individual body. Without health no
pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.” These
points make it important for us to give full attention to this topic. As in either way it is a part
of our everyday life.

Types of arrest
The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973)
nor IPC (Indian Penal Code,1860). The definition has not been provided even in any
enactments dealing with Criminal Offences. The only indication of what does an arrest
constitute can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.

If broadly characterized arrest is of two types-

1. Arrest made in pursuance with a warrant issued by the magistrate.

2. Arrest made without any warrant but within the established legal provisions.
Another type of arrest is Private Arrest in which a person is arrested by another person. But it
is allowed only in case a person commits a non-bailable offence in another person’s presence
or is apprehended of committing a crime against a person or his property and when he is not
given the correct address of his residence or it is unknown. But before arresting a person there
should be sufficient apprehension and justifiable cause to arrest that particular person.

Arrest by warrant
If a person commits an offence which is non-arrestable then a warrant is necessary to be issued.
The police cannot make such kind of arrest without a warrant. The warrant is issued by a Judge
or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the
person or capture or seizure of an individual’s property. Section 41(1) of CrPC,1973 explains
when can a person be arrested without any warrant. Section 41(2) of CrPC, 1973 states that
subject to the condition in Section 42, a person cannot be arrested without a warrant and an
order of the magistrate in case of non-cognizable offence and where a complaint is made. The
procedures to be followed while arresting a person find its mention in Section 46 of the Code.
But this Code is not fully sufficient to provide all the procedures, for this the guidelines given
in different cases are followed.

Arrest without warrant

An arrest without a warrant means when a police officer is entitled to arrest a person without
any warrant. It can happen only in cases where a person is a suspect of an arrestable offence.
There are several grounds provided in Section 41(1) of CrPC under which an arrest can be
made without a warrant. It is usually done in case of a cognizable offence, when a reasonable
complaint is made or when a piece of credible information has been received.

In the United States, an arrest without a warrant still requires a probable cause, which must be
promptly filed.

Arrest on refusal to give name and residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and
residence.

Section 42(1) says that when a person has committed a non-cognizable offence refuses to give
his name or address or gives a false name and address on the demand of the officer, he may be
arrested by such officer to ascertain his correct name or residence.

Section 42(2) says that the person so arrested may be released after ascertaining the true name
or residence but only after executing a bond, with or without sureties, to appear before the
magistrate if required. But if the person is not a resident of India then the bond should be
secured by a security or securities resident of India.

Section 42(3) says that if true name or address of the person is not found within twenty-four
hours or if he fails to execute the bond or required sureties then he has to be presented before
the magistrate falling within the jurisdiction.

Procedure of arrest by a private person

The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal
Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-bailable
offence or any proclaimed offender and without wasting any unnecessary time can be taken to
a police officer and in the absence of the officer the accused has to be taken to the nearest police
station.

Section 43(2) says that if the arrest of that person comes under Section 41, the police officer
shall re-arrest him.

Section 43(3) provides that if there is sufficient reason to believe that he has committed a
bailable offence and refuses to give his true name or address to the police officer, he shall be
dealt with according to the provisions of Section 42. But he shall be released if there is no
sufficient reason to believe that he has committed an offence.

Arrest by magistrate

Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1)
of CrPC when an offence is committed in the presence of a magistrate within his local
jurisdiction, he has the power to arrest that person himself or order any person for arrest and
subject to the conditions relating to bail, commit the accused to custody.

Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct
to any person in his presence, within his local jurisdiction of whom who he is competent to
arrest at that time and in the circumstances to arrest.

An exception of the Armed forces

The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.

Section 45(1) states that no member of the armed forces can be arrested for anything done
while discharging the official duties except with the consent of the Central Government. It is
subject to the conditions mentioned in Section 41-44 of the Code.

Section 45(2) lays out that the State Government may through a notification can direct that the
sub-section (1) shall apply to any class or category of members of Armed forces who are
charged with the maintenance of public order as may be specified thereupon, whenever they
are serving. In other words, the State government just like the Central Government is
empowered to use the power mentioned in sub-section (1).
Procedure of arrest
There is no complete code which provides the procedure as a whole. Still, Section 46 explains
how arrest is made.

It is the only place that gives the meaning of arrest. Section 46(1) provides that in an action of
arrest the police officer or the person making the arrest shall actually touch or confine the body
of the person arrested. In the case of women, her submission to the custody of an oral intimation
of arrest shall be presumed and unless the police officer is female, she shall not be touched by
the police officer at the time of time. But in exceptional situations, contrary to what is
mentioned can be done.

According to Section 46(2), the police are authorised to use reasonable amount or means of
force to effect the arrest in cases where the person being arrested forcibly resists or attempts to
evade arrest.

Recently what we saw in the Hyderabad Rape case(2019) can be a good example. The police
officer using the power under this provision used an amount of force to prevent the accused
from escaping. Whether the amount of force applied was reasonable or not is a question which
will be inquired by the court.

Section 46(3) does not give the right to cause the death of the person who is not accused of an
offence. The punishment in such cases is death or imprisonment for life.

Section 46(4) says that except in certain conditions a woman cannot be arrested after sunset
and before sunrise and where such exceptional conditions exist, the woman police officer by
making a written report can obtain the prior permission of the Judicial Magistrate with the local
jurisdiction to make an arrest.

Additional powers for effecting arrest search of place

Section 47 of CrPC provides for the search of place entered by place sought to be entered. It
further provides that the person having the warrant has the duty to enter the premises of the
person being arrested. If the person is not able to easily ingress the premises or is not allowed
to enter, then they have the authority to break open the door. It is done to take the person by
surprise.

But if there is any female occupying the premises then the person arrested has to give notice to
that female to withdraw and shall afford every reasonable facility for withdrawing and they
may break the apartment.

Any police officer or person making the arrest is authorised to break open the door in order to
liberate himself if he is detained in that process.
Post arrest procedures

Firstly, according to Section 50(1) of CrPC, it is the duty of the police officer or any person
arrested without warrant to inform the person arrested about the grounds of the offence for the
arrest.

Secondly, in the case where the arrest is made under a warrant, the police officer under Section
75 CrPC is required to inform the person arrested about the substance of arrest and if required
to show the order. If it is not done the arrest will become unlawful.

The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a
fundamental right. It prescribes certain rights that are present with the accused at the time of
arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody
without being informed about the reason for arrest and consult a legal practitioner of his
choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his
arrest along with his companions. He challenged this under Article 32 as it was in violation of
his fundamental right before the Supreme Court. The Supreme Court observed that there was
a violation of an essential and vital right of the petitioner.

Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show
before the magistrate without unnecessary delay(usually within 24 hours). It is also mentioned
that the person arrested cannot be taken to any place other than the police station before
presenting before the magistrate. This is provided in Article 22 with Section 56 and Section
76 of the CrPC.

Apart from this, the police officer always has to bear the clear, visible and proper identification
of his name which may facilitate his easy identification. As soon as the arrest is made a memo
should be prepared which is to be attested by at least one witness and countersigned by the
person arrested.

The arrested person also has the right to consult an advocate of his choice during interrogation
under section 41D and Section 303 of CrPC. Apart from these, there are many other rights and
procedures mentioned in the further part of the article.

Search of an arrested person

Section 51(1) provides that the person arrested can be searched for articles on the body and the
receipt of all those articles is to be provided to that person.

Section 51(1) says that in case of a search of female, it will happen only by a female
maintaining some amount of decency.
Seizure of offensive weapons

The officer or the person arresting has the power to seize any offensive weapon which he
possesses and deposit all weapons to the court or the officer before whom the person making
the arrest is required by the Code to produce the person arrested(Section 52).

Medical examination of accused

Section 52(1) provides that when a person who is arrested for a charge of the offence of such
a nature that there are reasonable grounds for believing that such examination will produce
evidence related to the commission of the offence. It is lawful for a registered medical
practitioner under the request of the police officer, not below the rank of sub-inspector to carry
about an examination with the use of reasonable force. But this force cannot be too much.

Section 52(2) says that when the examination is done of a female, it should only be done by a
female or under the supervision of a female registered medical practitioner.

Section 53A discusses the method of medical examination of a person accused of rape.

Article 20 of the Constitution provides that no person who is an accused can be compelled to
give evidence against himself. This provision comes into play in relation to this section.

State of Bombay V. Kathi Kalu Oghad

In the case of State of Bombay vs. Kathi kalu Oghad, the Supreme Court provided certain
guidelines in respect of Testimonial Compulsion or Right to self-incrimination.

1. The mere fact that a statement was made in police custody cannot be proposed by
the accused that the statement made at such time will be of compelling him to be a
witness against himself.
2. The mere answer to a question asked by a police officer which is voluntarily given
would not amount to ‘compulsion’.
3. The meaning of the “terms to be a witness” and “furnishing evidence” is different if
seen from a broader view. As it includes not only merely giving an oral evidence
but also the production of documents or giving material at a trial to prove the
innocence or guilt of the person accused.
4. The term “to be a witness” does not include the thumb impression or impression of
foot.
5. “To be a witness” means imparting knowledge of relevant facts in oral or written in
a court.
 6. The court has gone beyond the strict literal interpretation of the expression “to be a
witness” which now bears a broader meaning.
7. To bring the statement in question with the prohibition of Article 20(3), the person
must be in the character of the accused person at the time he made the statement.

Identification of an arrested person

According to Section 54A, when a person is arrested on charge of committing an offence and
his identification by any other person is deemed necessary then the court for the purpose of
investigation, having jurisdiction, can direct the person so arrested to subject himself to
identification in front of any person or persons as the court may think fit. When the person
identifying the arrested person is mentally or physically disabled, in that case, the process of
identification will happen before a Judicial Magistrate who will ensure that he identifies with
the help of a medium he considered it comfortable. And this identification needs to be recorded
in a form of video.

Procedure when delegated person arrest without warrant

When a delegated person arrests the accused without warrant, any person thus arrested lawfully
be delivered to the officer in writing the reason specifying the arrest. The officer needs to notify
the person arrested the, substance of the arrest and if required to show the order of substance
to the person arrested.

Report of arrests to be sent to DM and the procedure

Section 58 states that officers who are incharge of police stations shall report to the District
Magistrate or if he directs to the sub-divisional magistrate, the cases of all persons arrested
without a warrant within their local jurisdiction and whether they have been admitted to bail or
otherwise.

Rights of an arrested person

The Constitution of India has laid down some basic rights for the accused at the time of the
arrest. It is part of the Magna Carta (Part-III) of the Constitution. This makes it very crucial in
nature. As in case these rights are not enforced, they can be challenged through a writ petition
under Article 32 and 226 of the Constitution. It means that these rights in any way cannot be
omitted from enforcing as they are fundamental. In addition to the constitution, it is also
mentioned in the Code of Criminal Procedure,1973. Rights like Right to be informed, right to
be presented before a magistrate within 24 hours, right to consult a legal practitioner of choice
finds a place in Article 22 as well in CrPC.

Right to be informed of the grounds of arrest

Article 22 of the Constitution expressly provides Protection to an accused against arrest and
detention

Article 22(1) says that no person who has been arrested shall be detained in custody without
being informed of the grounds of arrest and nor shall be denied the right to be consulted and
defended by a lawyer of choice.

Section 50(1) CrPC also mentions that every police officer or any other person arrested without
a warrant has the duty to inform all the particulars of the offence to the accused forthwith
(immediately). The time duration between which it is essential to inform the accused should be
reasonable. If the police officer or the person arresting skips this right then the accused can
move to the court under Article 32. The petitioner would be entitled to a writ of Habeas Corpus
which can result in their release.

The rules originating from the decisions such as Joginder Singh v. State of U.P. and D.K. Basu
v. State of West Bengal have been enacted in Section 50-A making it obligatory on the part of
the police officer not only to inform the friend or relative of the arrested person about his arrest
etc. but also to make an entry in a register maintained by the police in the police station. The
magistrate who is observing such arrest is also under an obligation to satisfy himself about the
compliance of the police of all the procedures in this regard.

Right to be released on bail

Section 50(2) CrPC provides that “where a police officer arrests any person other than a person
accused of a non-bailable offence without warrant, he has the duty to inform the arrested person
that he is entitled to be released on bail and he may arrange for sureties on his behalf.” This
will certainly be of help to people who may not know about their rights to be released on bail
in case of bailable offences. As a result, this provision may to an extent, improve the
relationship of the people with the police and reduce the discontentment against them.

Right to be produced before a magistrate

Article 22(2) of the Constitution provides that every person who is arrested should be presented
before the nearest Magistrate within 24 hours of such arrest, excluding the time of journey from
the place of arrest to the place of magistrate. No person will be detained in custody of the police
beyond the said period without the authority of the magistrate.

Section 56 and 57 of CrPC also provides for the same. If the person arrested is not presented
before the Magistrate within the reasonable time and without a just reason, the arrest will be
unlawful.

Protection against arrest and detention

Article 22 outlines several rights available to an accused in case of arrest and detention. Article
22(1) talks about the duty to inform the accused of the grounds of arrest and to consult a lawyer
of choice. Article 22(2) makes it mandatory for the police officer to present the person arrested
before a magistrate within twenty-four hours and cannot be detained beyond the said period.

Article 22(4) says that no person can be detained beyond the period of three months except on
the recommendation of the Advisory Board. The person detained should be communicated the
reason for detention as soon as possible and give him the earliest opportunity to make a
representation against the order.

State of Punjab v. Ajaib Singh

This case defines Arrest as “ Arrest is a physical restraint which is put on a person as a result
of accusations of the crime or offence he has committed”.

The order of detention was not in accordance with the Defence of India Act,1962 and Rules
and must be set aside, as he was not then the District Magistrate, but only an Additional District
Magistrate.

Right to consult a legal practitioner

Article 22(1) and Section 41D CrPC gives the accused the right to be consulted and defended
by a legal practitioner of choice. He is entitled to meet an advocate of his choice during
interrogation, though not throughout the interrogation.

Right to free legal aid

Free legal aid means providing free legal services to the people who are economically not
strong to conduct a case or any legal proceedings in a court of law or before any judicial tribunal
and judicial authority. Article 39A (Directive Principles of State Policy) provides that it is the
duty of the state to provide justice on easily accessible terms so that every citizen can easily
approach the courts to enforce their rights. It ensures to provide justice based on equal
opportunity through free legal aid or legislation favouring people who cannot access justice
because of economic conditions or any other difficulty. For this, institutions like Legal Service
Authorities are established at National, state and district levels.

Hussainara Khatoon v. State of Bihar

In the case of Hussainara Khatoon vs. State of Bihar, a Public Interest Litigation(PIL) was filed
in the name of Hussainara Khatoon, a prisoner in a jail in the Supreme Court. The Court held
that if an accused is not able to afford the legal services he has the right to free legal aid at the
cost of the state. It is one of the duties of the state to provide a legal system which promotes
justice on the basis of equal opportunity for all citizens who are denied access to justice because
of economic conditions or other disabilities. Therefore they must arrange for free legal services
for the individuals.

Right to be examined by a medical practitioner

Section 54(1) CrPC gives a right to the accused to proceed with a medical examination of his
full body in case this examination will afford evidence which can disprove the commission of
an offence or crime on him or prove the commission by any other person at the time when he
is presented before the magistrate or at any time during the detention. It can happen with the
permission of the magistrate but if he thinks it is done just to cause a delay, he has the power
to cancel it.

Joginder Kumar v. State of UP

A petition was filed under Article 32 by a young lawyer. The Supreme Court held that it is the
right of an accused to be informed of the grounds of his offence, informed someone of his arrest
and to consult a lawyer are inherent in Article 21 and Article 22 of the Constitution. It was also
held that a police officer cannot arrest just because he has the power to do so. It should exhibit
a clear justification for every arrest. Since there is some amount of harm caused to the
reputation of a person when he is put behind bars. Therefore every arrest should happen after
reasonable satisfaction and the minimum level of investigation as to the genuineness and bona
fides of a complaint. Apart from these certain guidelines, were also provided that needed to be
necessarily followed at the time of the arrest. This case law is taken into consideration for
looking for rules apart from those mentioned in CrPC.

Consequences of non-compliance with the provisions relating to arrest

The non-compliance of the provisions which are mentioned in CrPC and other enactments will
not make the trial void. It would not affect the liability of the accused. But it will be a material
fact if the accused resisted or escapes from the legal custody. But a person has a right to defend
himself in case of unlawful arrest or detention. He can enforce his rights through Section 96 to
Section 106 of IPC. the person who is liable for unlawful arrest and can be made guilty for
wrongful confinement and claim damages through a civil suit.

Conclusion
Rights are available to every citizen of the country. Even a person who is accused of an offence
possesses various rights some of which are fundamental in nature. The accused can in case of
non-compliance of these provisions approach the court where remedy is available. On the other
hand, the police authorities are required to follow the procedure given in Chapter V of the Code
of Criminal Procedure(CrPC).
 Module 04

Search and seizure warrant

Search and seizure under CrPC are a crucial step in a proper investigation. The police have two
ways to carry out a search and seizure. One way is with a legal warrant issued under specific
laws like Sections 93, 94, 95 and 97. The other way is without a warrant, allowed under
Sections 103, 165 and 166.

There are general rules for search and seizure outlined in Section 100 of the CrPC (Criminal
Procedure Code). These rules are generally followed in cases under the Indian Penal Code and
other laws, with slight differences. So, in all situations involving search and seizure, the
investigating police should follow the rules in Sections 100 and 165 of the CrPC.

It’s worth noting that some special laws, like the Narcotic Drugs and Psychotropic Substances
Act, 1985, have their own specific procedures for search and seizure that the police must
follow.

The police may need to conduct searches in multiple places. One could be at the scene of the
crime and others may be at locations where people involved in the crime are hiding, as well as
places where evidence related to the crime is stored or hidden.

Meaning of Search and Seizure under CrPC

In the investigation process, “search” means looking into an individual or their property to find
evidence, while “seizure” means taking possession of that property once the search is done.
Search can limit a person’s use of their property, but it’s necessary for legal reasons. Article
19(5) of the Constitution of India acknowledges that the right to own property isn’t absolute
and comes with some restrictions.

Here are some important points to keep in mind:

 Police can seize property in non-cognizable offence cases, but there must be a reasonable
suspicion for the seizure.
 Only a police officer is authorized to seize property; they can’t delegate this task to someone
else.
 Under Section 47 of CrPC, a police officer can enter and search premises with an arrest warrant.
They can also break open doors or windows to free themselves or others in certain situations.
Section 58 allows police to search a person anywhere in India.
 Section 165(1) of Cr.P.C permits police to search within their station’s limits but not when a
court-issued warrant is involved.
 After a search, the police can seize some items. They must create a seizure report on the spot
to follow the law, as people often accuse them of planting evidence.
 Courts have ruled that evidence obtained through illegal search and seizure may not always be
inadmissible; it depends on the circumstances.
 Knowing arrest, search and seizure procedures can protect individuals from mistreatment by
those responsible for maintaining law and order. It’s crucial to raise awareness about these
topics.

Procedure for Search and Seizure under CrPC

The process for conducting searches and seizures is outlined as follows:

Section 91: The court or the officer in charge can issue a summon or a written order requiring
a person to produce documents or items deemed important for an investigation, inquiry or legal
proceedings. The person in possession of these documents or items must comply with the
request and provide them at the specified time and place.

Section 92: If law enforcement agencies, including the District Magistrate and High Court,
believe that a document, parcel or item held by postal or telegraph authorities is crucial for an
investigation, trial or legal proceedings, they can instruct the postal or telegraph authority to
deliver the item as per court directions. The court may also permit searches by postal or
telegraph authorities to locate such items.

Section 93: A search warrant can be issued under several circumstances. Firstly, if the court
believes that the person summoned or ordered will not produce the necessary document or item,
a warrant can be issued against that person. It can also be issued when the court doesn’t know
who possesses the document.
 The court may specify the extent of the inspection and the person in charge of the inspection
must follow these instructions. Only the District Magistrate or Chief Judicial Magistrate can
authorize the search of documents in the custody of postal or telegraph authorities.

Section 94: This section deals with searches at places suspected of containing stolen property
or forged documents. If a District Magistrate, Sub-divisional Magistrate or a Magistrate of the
first class believes that a place is being used for storing stolen property or producing
objectionable items as mentioned in this section, they can authorize a police officer (above the
rank of constable) to enter the place with assistance if needed.

The police must conduct the search as specified in the warrant, taking possession of
objectionable or stolen property. They must report this to the Magistrate or safeguard it until
the offender is brought before the Magistrate. If they find anyone involved in the storage, sale
or production of objectionable items or stolen property, they can detain the person and later
present them before the Magistrate.

Objects considered objectionable under Section 94 include:

 Counterfeit coins, currency notes or stamps.

 Forged documents.
 False seals.
 Pieces of metal prohibited under the Metal Tokens Act, 1889 or brought into India in violation
of Section 11 of the Customs Act, 1962.
 Items considered obscene under Section 292 of the IPC.
 Instruments that may be used for producing the above-mentioned objectionable items.
Section 95 empowers the court to declare certain publications as forfeited. If the State
Government believes that an article, newspaper, document or book may contain content
punishable under specific sections of the Indian Penal Code (IPC), such as 124A, 153A, 153B,
292, 293 or 295A, it can declare all copies of that material forfeited to the Government. A
magistrate can authorize a police officer, not below the rank of Sub-Inspector, to seize these
documents.

According to the warrant, the police can enter and search for these suspected documents on
any premises. The terms “Newspaper” and “Book” have the same meanings as defined in the
Press and Registration of Books Act, 1867 and “Document” includes drawings, paintings,
photographs or other visible presentations.

For example, in the case of Anand Chintamani Dighe v. State of Maharashtra, the State
Government seized a notice to forfeit the book titled “Mee Nathuram Godse Bolto ahe” (I am
Nathuram Godse speaking) in all forms, including the Gujarati translation. The reason was that
the publication of this book was believed to disrupt public peace, promote disharmony or incite
hatred among different groups or communities.

Section 97 deals with the search of a person whose confinement constitutes an offence. If a
District Magistrate, Sub-Divisional Magistrate or first-class Magistrate has reasonable grounds
to believe this, they can issue a search warrant. The person to whom the search warrant is
addressed must search for the confined person and, if found, bring them immediately before
the Magistrate for further legal proceedings.

Section 98 addresses the process for restoring an abducted woman, including a female child
under the age of 18.

Section 99 provides directions for search warrants. The provisions of Sections 38, 70, 72, 74,
77, 78 and 79 apply to all search warrants issued.

Procedures to be Followed During Search and Seizure under Section 100 of CRPC

During a search and seizure conducted under Section 100 of the Criminal Procedure Code
(CrPC), it is crucial for the investigating police officer to adhere to specific procedures. Any
deviations or violations of these procedures can have adverse consequences for the prosecution
case and may invalidate the trial. Here is a simplified explanation of the procedures that should
be followed:

Access and Facilities: Ensure that both search with a warrant and search without a warrant
allow free entry and provide reasonable facilities.

Entry and Breaking: The police officer conducting the search is authorized to enter the
premises. If necessary, they can forcefully open outer or inner doors or windows after properly
notifying their authority and purpose and demanding admittance. Section 47(2) includes
safeguards to protect the privacy of a pardanashin woman during the search. It’s essential to
note that if improper or unlawful obstruction or resistance is encountered during the exercise
of this power or the performance of official duty, reasonable means can be used to overcome
such obstacles.

Search of Persons: To prevent the possibility of someone secretly concealing any article or
item being searched for, Section 100(3) permits the search of individuals. If the person to be
searched is a woman, another woman must conduct the search, with strict adherence to decency
and respect for her modesty.

Presence of Witnesses: The search must take place in the presence of at least two independent
and respectable residents of the locality where the search is being conducted. However, if no
such residents from the locality are available or willing to act as witnesses, individuals from
another locality can serve as witnesses. It is important to emphasize the respectability of the
witnesses rather than their specific locality or independence.

This provision is intended to prevent potential manipulation and unfair practices by those
authorized to conduct the search and to ensure that any incriminating evidence claimed to have
been found in the searched premises was genuinely discovered there and was not planted by
the search party. Having witnesses during a search is always recommended and their absence
can weaken or even invalidate the admissibility of evidence regarding the discovered items.

Written Order to Witnesses: Section 100(4) requires the officer or person conducting the
search to call the witnesses (often referred to as “panch witnesses”) to attend and witness the
search and they may issue a written order for this purpose.

If an individual ordered to act as a witness neglects or refuses to attend and witness the search
without reasonable cause, they may be deemed to have committed an offence under Section
187 of the Indian Penal Code as per Section 100(8).

Daylight Searches: Whenever possible, searches should be conducted during daylight hours.
However, if the information is received after dusk, necessitating an immediate search of a
house and if there is a risk of evidence being concealed or destroyed if the search is delayed
until daybreak, the house should be sealed and guarded. If sealing and guarding are not feasible,
the search should be conducted during the nighttime itself.
 Exterior Inspection: Before entering the premises to be searched, inspect the exterior of the
place to determine whether there are any means or facilities for introducing property from
outside.

Mutual Search: Prior to commencing the search, both the investigating officer and the panch
witnesses should conduct a mutual search of each other. This step ensures transparency and
accountability.

Systematic and Thorough Search: Search and seizure under CrPC should be conducted in a
systematic and thorough manner to ensure that no potential evidence is overlooked or
compromised.

Withdrawal of Women: During the search and seizure under CrPC, women should be allowed
to withdraw from the premises to safeguard their privacy and dignity.

Avoid Indiscriminate Search and Property Damage: Indiscriminate search and damage to
property should be avoided. The search should focus on the specific items or areas relevant to
the investigation.

Presence of Occupant or Nominee: In every case, the occupant of the place being searched
or their nominee should be permitted to attend during the search. Denying this permission may
raise suspicions about the credibility of the discovered evidence. However, if the presence of
the occupier or nominee could cause undue delay and frustrate the purpose of the search, their
presence may be dispensed with.

Preparation of List: Prepare a list of all items seized during the search and specify the places
where they were found. This list should be prepared by the police officer or the person
conducting the search and should be signed by the panch witnesses. Notably, the signature of
the accused on the search list is not legally required.

Search List Copies: Create a search list in quadruplicate. All copies should be signed by the
police officer conducting the search and the witnesses to the search. The four copies serve
different purposes:

 One copy is handed over to the owner or occupant of the house.

 The second copy is sent to the Magistrate.
 The third copy is included with the case diary and sent to the superior officer responsible for
case diaries.
 The fourth copy becomes part of the station records, maintaining a record of the search.

Search and Seizure at Different Places under Sections 165 and 166 Read With Section
100 CRPC

Section 165 of the CrPC provides for exceptional circumstances in which responsible police
officers can conduct searches without prior court authorization. However, the legislature has
put limitations on these powers to prevent abuse and safeguard the rights of citizens.

Here’s an explanation of the key points in Section 165 CrPC:

Grounds for Belief: An officer-in-charge of a police station or an investigating officer can

conduct a search if they have reasonable grounds to believe that something necessary for the
investigation of an offence they are authorized to investigate may be found in a specific place
within the jurisdiction of their police station. They must also believe that obtaining this item
through other means would cause undue delay.

Recording Grounds: Before conducting the search, the investigating police officer must
record the grounds for their belief. They must specify in writing the item they are searching
for. This written record is known as the “record of reasons.”

Subordinate Officer: If the investigating police officer is unable to conduct the search
personally, they can delegate the search to a subordinate officer. However, they must provide
written orders specifying the place to be searched and the item sought. Copies of these records
must be sent to the nearest Magistrate empowered to take cognizance of the offence.

When a search needs to be conducted in the jurisdiction of another police station, whether in
the same district or a different one, the officer-in-charge of the investigating police station can
request the officer-in-charge of the other station to conduct or arrange the search. However, if
there is reason to believe that a delay in this process might result in the concealment or
destruction of evidence, the investigating police officer can conduct or arrange the search
themselves. In such cases, they must promptly notify the officer-in-charge of the police station
in whose jurisdiction the search was conducted and the nearest Magistrate empowered to take
cognizance of the offence. This ensures that evidence is not compromised due to unnecessary
delays.

Additionally, Section 166A of CrPC empowers the investigating police officer to communicate
with competent authorities for investigations in countries or places outside India when
necessary.

These provisions aim to strike a balance between the need for effective investigations and the
protection of individual rights and privacy. They grant limited powers to law enforcement
while imposing strict procedural requirements to prevent abuse.

Search and Seizure at the Scene of Crime

When conducting a search and seizure under CrPC at the scene of a crime, the investigating
police officer must follow specific procedures to preserve evidence and maintain the integrity
of the investigation. Here are the key steps and guidelines:

Preservation of the Crime Scene: The investigating officer should never alter the position of
objects at the crime scene, pick up or touch any item before it has been thoroughly documented.
The officer should ensure that the original condition of the scene is preserved.

Initial Inquiries: The officer should contact the first person who arrived at the scene and
gather initial information. This may include statements from witnesses or individuals present
at the scene.

Preventing Interference: Unauthorized persons should not be allowed to interfere with the
inspection of the crime scene. It’s essential to secure the area and prevent contamination of
evidence.

Avoid Crowding: Excessive crowding at the scene should be avoided, as it can lead to the
destruction of potential clues. The officer should manage the crowd and ensure that only
authorized personnel are present.

Thorough Inspection: The officer should conduct a thorough and systematic inspection of the
scene, avoiding any rush. Nothing should be considered trivial and every detail should be noted.
Use of Independent Witnesses: Independent witnesses from the local community should be
summoned to assist in drawing a “panchanama” as required under Section 100 of the CrPC.
These witnesses provide impartial verification of the search and seizure process under CrPC.

Accurate Documentation: The investigating officer should take accurate and detailed notes
of the scene, including descriptions of objects and their exact locations. Sketches drawn to scale
should also be created, showing the layout of the scene and the positions of relevant items. The
exact position of evidence should be noted.

Photographs and Videographs: In important cases, photographs and videographs of the scene
and any objects or evidence should be taken. Visual documentation helps in presenting a clear
and accurate account of the crime scene.

Use of Sketches: Sketches should be prepared to scale, indicating compass points (North,
South, East, West) and providing accurate distance measurements using appropriate units (e.g.,
inches, feet, meters). A ruler, scale and compass should be used for measurements.

Disposal of the Seized Property

The disposal of property seized by the police is subject to certain legal procedures and
requirements. Here’s an explanation of how seized property is handled:

Custody of Seized Property: The police are not authorized to dispose of seized property
without an order from the competent court. When the police seize property, they are responsible
for its custody until proper legal procedures are followed.

Handing Over to a Person: Under sub-section (2) of Section 102 of the CrPC, the police have
the authority to hand over the custody of seized property to a person who is willing to take
responsibility for it. This person is required to execute a bond (a legal document) with the
condition that they will produce the property before the court whenever required.

Sale in Specific Cases: In certain situations, if the seized property is subject to rapid decay
(e.g., perishable goods) and the rightful owner is unknown or absent and the value of the
property is less than five hundred rupees, the property may be sold by auction under the orders
of the Superintendent of Police. This provision allows for the quick disposal of property that
may otherwise go to waste.
Court Disposal: In all other cases and circumstances not covered by the above provisions, the
court is empowered to determine the appropriate method of disposal for the seized property.
This typically involves following the procedures outlined in Sections 457 and 458 of the CrPC.

Section 457: This section deals with the disposal of property when the rightful owner is known
but cannot be found despite reasonable efforts. The court can order the property to be sold and
the proceeds are held until the owner claims them.

Section 458: This section pertains to the disposal of property when there is no claimant or
when the property is not required for any ongoing legal proceedings. The court may order the
property to be sold or otherwise disposed of in a manner it deems appropriate.

Landmark Judgements on Search and Seizure under CrPC

These landmark judgments in Indian law address various aspects related to search and seizure
under CrPC:

V. S. Kuttan Pillai v. Ramakrishnan: This case clarified that the procedural validity of search
warrants does not violate Article 20(3) of the Indian Constitution, as a search for premises
occupied by the accused does not compel the accused to provide evidence against themselves.
This ruling upheld the legality of search warrants in such cases.

Ramesh vs Laxmi Bai: In this case, it was established that the custody of a son by his father
should not be considered unlawful detention. Consequently, no search warrant could be issued
in such circumstances. This judgment emphasized the importance of distinguishing between
lawful custody and unlawful detention.

Matajog Dobey vs. H.C. Bhari: The court’s decision highlighted that when statutory
provisions related to searches are not followed, the credibility of the evidence supporting the
search may be diminished. However, it also noted that the defendant may provide sufficient
reasons for non-compliance with these provisions.

State of Maharashtra vs. Tapas D. Neogy: This case affirmed that a “bank account” is
considered property under Section 102 of the Criminal Procedure Code, empowering the police
officer to seize the operation of such an account if it is linked to the commission of the offence
 under investigation. This judgment clarified the scope of property in the context of search and
seizure under CrPC.

State of MP vs. Paltan Mallah: The court’s ruling emphasized that evidence obtained through
an illegal search is not automatically excluded unless it causes the accused serious prejudice.
The court has discretion to determine whether or not to accept such evidence, taking into
account the circumstances of the case.

Modan Singh vs. State of Rajasthan: This case underscored that if the prosecuting officer
provides compelling evidence of retrieving missing items, it is inappropriate to deny the proof
of recovery solely because seizure witnesses may not fully support the prosecution’s version.
The focus is on the strength of the evidence rather than the stance of seizure witnesses.

Difference Between Search and Seizure under CrPC

In the context of the CrPC in India, “search” and “seizure” are distinct legal processes, each
serving a specific purpose within the criminal justice system. Here are the key differences
between search and seizure under the CrPC:

Search
 Definition: A search, under Section 93 of the CrPC, refers to the process of examining a
person, place or premises to discover and collect material evidence related to a crime.
 Authorization: A search can be conducted either with a warrant issued under specific
provisions of the CrPC (e.g., Sections 93, 94, 95 and 97) or without a warrant under certain
provisions (e.g., Sections 103, 165 and 166).
 Purpose: The primary purpose of a search is to find and collect evidence that may be used in
the investigation or prosecution of a criminal offence.
 Procedure: The CrPC outlines specific procedures for conducting searches, including the
presence of independent witnesses and the preparation of detailed records, such as panchanama
and sketches.
 Example: Searching a suspect’s home with a warrant to find and seize evidence related to a
theft.
Seizure
 Definition: Seizure, as it pertains to the CrPC, involves taking possession of an item, property
or evidence that is found during a search.
 Authorization: Seizure is typically a part of the search process. When evidence or items
related to a crime are discovered during a search, they are seized by the investigating officer.
 Purpose: The purpose of seizure is to secure and preserve evidence or items that are relevant
to the investigation or prosecution of a criminal case.
 Procedure: The CrPC does not provide specific procedures for seizure itself, as it is an integral
part of the search process. However, seized items must be properly documented and their chain
of custody must be maintained.
 Example: During a search of a suspect’s vehicle, the police officer seized a bag containing
stolen goods as evidence.

Aspect Search Seizure

Process of examining a
Involves taking possession of an
person, place, or premises to
Definition item, property, or evidence
discover and collect material
discovered during a search.
evidence related to a crime.

Can be conducted with or

Integral part of the search process;
without a warrant under
Authorization occurs when relevant evidence or
specific provisions of the
items are discovered.
CrPC.

To find and collect evidence

for use in the investigation or To secure and preserve evidence or
Purpose
prosecution of a criminal items that are relevant to the case.
offence.

Specific procedures outlined

in the CrPC, including the Not subject to separate procedures;
Procedure presence of independent part of the search process. Must be
witnesses and detailed properly documented.
record-keeping.
 Searching a suspect’s home
During a search of a suspect’s
with a warrant to find and
Example vehicle, seizing a bag containing
seize evidence related to a
stolen goods as evidence.
theft.

Conclusion

Search and seizure under CrPC refer to the process of examining a person, place, or premises
to collect material evidence and the act of taking possession of relevant items or evidence
discovered during the search, respectively.

Both search and seizure under CrPC are important in the investigation and prosecution of
criminal cases and they must be conducted in accordance with the procedures outlined in the
CrPC to ensure the legality and reliability of the evidence collected

Module 05

Meaning of Conditions Requisite for the Initiation of Proceedings

Conditions requisite for the initiation of proceedings refer to the essential criteria that must be
met before legal actions or proceedings can commence. These conditions are outlined in
various sections of the Criminal Procedure Code, specifying prerequisites such as obtaining
prior consent, filing written complaints by concerned authorities and ensuring compliance with
procedural protocols.

The initiation of proceedings is contingent upon satisfying these conditions, ensuring a lawful
and justified basis for legal actions. These conditions serve to protect individuals from
unwarranted or malicious prosecution, maintaining the integrity of legal processes and
upholding the principles of justice and fairness in the adjudication of offences.

Section Title Brief Description

 Cognizance of Conditions for a Magistrate to take cognizance of an offence,
190 Offences by involving complaints, police reports, information from non-
Magistrates police officers or knowledge of the offence.

Transfer on Accused must be informed of the right to request a trial by

191 Application of the another Magistrate; the case must be transferred if the accused
Accused objects.

Chief Judicial Magistrate or authorized Magistrate can

Making Over of transfer cases to another competent Magistrate after taking
192
Cases to Magistrates cognizance; limited to cases already taken cognizance of
under Section 190.

Cognizance of
Court of Session cannot take cognizance unless the case has
193 Offences by Courts
been referred by a Magistrate under the Code.
of Session

Additional and Additional and Assistant Sessions Judges can try cases
194 Assistant Sessions transferred to them by the Sessions Judge through order or as
Judges to Try Cases directed by the High Court.

Prosecution for
Court cannot take cognizance unless a written complaint is
Contempt, Offences
195 filed by the concerned public servant; strict prohibition
Against Public
against court action without specified procedures.
Justice

Procedure for
Outlines the procedure for filing a complaint related to an
195A Witnesses in Case of
offence under Section 195A of the IPC.
Threatening

Prosecution for
Consent of Central or State Government required for cases
Offences Against
196 punishable under specific sections; initial inquiry by a police
State and
officer of at least inspector rank.
Conspiracy

Prosecution of Prior approval from central or state government required;

197 Judges and Public pertains to offences committed while employed in connection
Servants with the affairs of the union.
 Prosecution for Court cannot take legal action unless a complaint is lodged by
198 Offences Against the victim; third-party complaints allowed in specific
Marriage circumstances.

Prosecution of
Offences Under Cognizance based on a police report or complaint by a
198A
Section 498A of the relative of the married woman listed in Section 198A CrPC.
IPC

Cognizance of Introduced after the Criminal Law (Amendment) Act, 2013,

198B
Offence regarding a new offence under Section 376 of the IPC.

Court cannot take legal action unless the victim files a

Prosecution for
199 complaint; exceptions for offences against high-ranking
Defamation
officials, with written complaints by the Public Prosecutor.

Conditions Requisite for the Initiation of Proceedings under CrPC

Section 190 – Cognizance of Offences by Magistrates

Section 190 of the Code of Criminal Procedure delineates the conditions under which a
Magistrate can take cognizance of an offence in India. This section empowers Magistrates,
both of the first and second class with special authorization, to initiate proceedings based on
specific circumstances.

These circumstances encompass receiving a complaint containing factual elements constituting

the offence, obtaining a police report detailing pertinent facts, receiving information from a
non-police individual or having personal knowledge of the offence. Notably, the Chief Judicial
Magistrate possesses the authority to empower a second-class Magistrate to take cognizance of
offences falling within their jurisdiction to inquire into or try.

Initiating proceedings under section 200 implies that the Magistrate has taken cognizance, a
determination necessitating a case-specific factual inquiry. The Magistrate must ensure the
complaint qualifies as an offence and exercise judgment on whether there’s justifiable cause to
take cognizance.

Section 190 emphasizes that cognizance is derived from the Magistrate’s examination of the
complaint’s allegations. At this stage, the focus is on establishing a reasonable basis for
proceeding, rather than evaluating the sufficiency of evidence for conviction, a determination
reserved for the trial phase.

Upon taking cognizance, the Magistrate shifts focus to the offence itself rather than the
offenders. Investigative responsibilities include identifying individuals responsible for the
offence. If additional individuals are implicated beyond those charged by the police, the
Magistrate is authorized to proceed against them.
Thus, when taking cognizance based on a police report, the Magistrate is not constrained to
processing only those individuals identified by the police. Even if the police express a contrary
viewpoint in the final report, the Magistrate can still take cognizance if they determine the
details represent an offence under clause (c).

Section 191 – Transfer on Application of the Accused

Section 191 of the Code of Criminal Procedure establishes the procedure for the transfer of a
case upon the application of the accused. In the event that a Magistrate takes cognizance of an
offence under section 190(1)(c), the accused must be duly informed, before any evidence is
adduced, of their entitlement to request the trial to be conducted by another Magistrate.

Should the accused or any among them, object to the proceedings continuing under the current
Magistrate, the case necessitates transfer to another Magistrate, as designated by the Chief
Judicial Magistrate. Importantly, the Magistrate who originally took cognizance of the offence
is precluded from proceeding with the trial unless the accused is apprised of their right to seek
adjudication before a different court prior to the commencement of evidence.

Section 192 – Making Over of Cases to Magistrates

Section 192 empowers the Chief Judicial Magistrate to transfer a case to a subordinate
Magistrate for inquiry or trial subsequent to taking cognizance of an offence. Similarly, a
Magistrate of the first class, vested with authority by the Chief Judicial Magistrate, can transfer
a case to another competent Magistrate, as specified in a general or special order by the Chief
Judicial Magistrate, after having taken cognizance of the offence. The Magistrate to whom the
case is transferred is then entrusted with conducting the inquiry or trial.

Cognizance under this section extends beyond offences alone. A Magistrate can take
cognizance of any matter falling within the purview of an inquiry or trial as per the provisions
of the Code, encompassing cases under sections 107, 110 and 145, among others. It is crucial
to note that a Magistrate can only transfer cases to which they have already taken cognizance
under section 190.

Once a case is transferred to a Magistrate’s court, further transfer to another court is

impermissible. The Supreme Court has elucidated that the Chief Judicial Magistrate possesses
unique authority under section 192(1) of the CrPC, a departure from the norm where the
Magistrate taking cognizance is typically responsible for handling the case. This exception is
likely attributed to the Chief Judicial Magistrate’s administrative responsibilities.

Section 193 – Cognizance of Offences by Courts of Session

This section underscores that, unless otherwise provided by the Code or any other prevailing
law, a Court of Session cannot take cognizance of an offence as a court of original jurisdiction
unless the case has been referred to it by a Magistrate under the provisions of the Code.

A Supreme Court ruling reinforces this principle, affirming that a Special Court under the
relevant Act is essentially a Court of Session. Consequently, such a court can only take
cognizance of an offence when the case has been committed to it by a Magistrate in accordance
with the provisions of the Code. This mandates that a complaint or charge-sheet cannot be
directly presented to the Special Court without first being committed by a Magistrate.
Section 194 – Additional and Assistant Sessions Judges to Try Cases Made Over to Them
Section 194 of the Code of Criminal Procedure empowers Additional and Assistant Sessions
Judges to preside over cases transferred to them. Specifically, these cases are allocated by the
Sessions Judge of the division through either a general or special order or as directed by the
High Court via a special order.

This section bestows authority upon the Sessions Judge to distribute work among Additional
and Assistant Sessions Judges, emphasizing that the term “cases” in this context pertains
exclusively to matters subject to trial and excludes appeals. Moreover, it grants the High Court
the discretion to issue special orders directing Additional or Assistant Sessions Judges to
adjudicate specific cases. The Sessions Judge of the division is similarly empowered to transfer
cases for trial to Additional or Assistant Sessions Judges through either a general or special
order.

6. Section 195- Prosecution For Contempt Of Lawful Authority Of The Public Servants, For
The Offences Against Public Justice And For The Offences Relating To The Documents
Given In Evidence
Section 195 of the Code of Criminal Procedure addresses the prosecution for contempt of
lawful authority of public servants, offences against public justice and offences related to
documents presented as evidence.

This section explicitly prohibits any court from taking cognizance of offences specified in the
relevant sections of the Indian Penal Code without a written complaint filed by the concerned
public servant. Falling within the category of sections limiting the court’s power to initiate
proceedings unless a specific complaint is lodged, Section 195 serves as a safeguard against
unfounded or frivolous prosecutions.

This provision imposes a stringent prohibition on the court’s action unless it strictly adheres to
the procedures delineated in the section, thereby emphasizing that any deviation from these
procedures would be unlawful and beyond the jurisdiction of the magistrate.

The primary objective of Section 195 is to shield individuals from baseless or vexatious
prosecutions initiated by private individuals in matters concerning the administration of justice
and lawful authority. By doing so, it aims to minimize the potential for unwarranted harassment
resulting from groundless prosecutions.

Under subsection 1(b), the offence must be committed “in or in relation to any proceeding in
any court,” encompassing a broad range of proceedings, including those before a criminal
court.[33]

7. Section 195a- Procedure for Witnesses in Case of Threatening, Etc.

Section 195A outlines the procedural aspects of filing a complaint related to an offence under
Section 195A of the Indian Penal Code (IPC), which pertains to witnesses or any person who
has been threatened or intimidated.
8. Section 196- Prosecution For Offences Against State And For Criminal Conspiracy To
Commit Such Offence
Prosecution for Offences Against the State
Section 196(1) stipulates that a court cannot take action against cases punishable under Chapter
VI or Sections 153A, 153B, 295A or 505 of the IPC, addressing offences against the state,
without the explicit consent of the Central or State Government. These sections encompass
offences such as disturbing communal harmony, making statements that hurt religious
sentiments and creating public mischief

Prosecution for the Offence of Criminal Conspiracy

Section 196(2) outlines that the Court cannot proceed with a case of criminal conspiracy under
Section 120B of the IPC, unless it involves a conspiracy to commit a serious offence punishable
by death, life imprisonment or imprisonment for more than two years. The initiation of
proceedings requires the written consent of the State Government or District Magistrate.
However, in cases falling under Section 195, such consent is not necessary.

In accordance with Section 196(3), an initial inquiry by a police officer with a rank not lower
than an inspector is mandatory before the Central Government, State Government or District
Magistrate grants approval.[39]

9. Section 197- Prosecution of Judges and Public Servants

Section 197 deals with the prosecution of judges and public servants. A public servant, defined
as someone dismissible from their position either by the government or with its permission,
enjoys protection under this section. No court can initiate legal proceedings against a public
servant for any offence committed while in connection with the affairs of the union without
prior approval from the central or state government.

The State of Orissa vs. Ganesh Chander Jew case clarified that Section 197(1) provides
mandatory protection to public servants. The phrase “no court shall take cognizance of such
offence except with the previous sanction” unequivocally restricts any court from entertaining
a complaint without obtaining prior sanction from the central or state government.

The section’s primary objective is to guard against vexatious proceedings, ensuring public
servants carry out their duties fearlessly. To fall under the protection of this section, specific
conditions must be met, including the accused being a current or former public servant and the
offence being related to official duties.

10. Section 198- Prosecution for Offences Against Marriage

Prosecution for Offences Against Marriage
Section 198(1) of the Indian Penal Code establishes that a court cannot initiate legal action
against offences under Chapter XX (pertaining to offences related to marriage) unless a
complaint is filed by the victim. However, in specific circumstances, a third-party complaint
may be lodged with the court’s permission. Such situations include cases where the victim is
unable to file the complaint themselves due to reasons such as being a minor, suffering from a
mental illness or being a woman unable to appear in public.

In such instances, the guardian of the victim is afforded an opportunity to be heard under
Section 198(3). Moreover, if the husband, serving in the armed forces of the union, is unable
to take leave, a third party authorized by the husband may file the complaint on his behalf. This
authorization must be in writing, signed or attested by the husband, countersigned by his
commanding officer and accompanied by a certificate signed by the same officer, as mandated
by Section 198(4). However, any such certificate or signed document is not presumed to be
genuine and admissible as evidence unless proven otherwise under Section 198(5).

Section 198(2) specifies that the court will not take cognizance of offences punishable under
Section 497 or Section 498 of the IPC unless the husband makes a complaint. In the absence
of the husband, a person responsible for the care of the woman on his behalf can file a complaint
on behalf of the husband. Finally, in cases where the victim is the wife under Section 494 of
the IPC, the complaint may be lodged by the victim’s father, mother, brother, sister, son,
daughter or by her father’s or mother’s brother or sister.

Prosecution of the Husband for Rape

A husband engaging in sexual intercourse with his wife can face rape charges if the wife is
under fifteen years old. However, the court will not entertain any complaint under Section 376
of the IPC if more than one year has passed since the offence was committed, as per Section
198(6). Furthermore, Section 198(7) stipulates that Section 198 also applies to abetment or
attempted commission of an offence under Chapter XX of the IPC.[47]

11. Section 198A: Prosecution of Offences Under Section 498A of the Indian Penal Code
Section 198A of the Criminal Procedure Code addresses the prosecution of offences under
Section 498A of the Indian Penal Code. This section allows a court to take cognizance of an
offence under Section 498A IPC based on a police report detailing the facts constituting the
offence. Additionally, a relative of the married woman, as listed in Section 198A CrPC, is
empowered to file a complaint regarding the offence under Section 498-A IPC.

The primary objective of this provision is to combat the issue of dowry demands and the
resulting harassment of married women. Enacted by the parliament, this section imposes
punishment, including imprisonment for up to three years, on the husband or relative of the
husband found guilty of causing cruelty to the married woman.

12. Section 198B: Cognizance of Offence

Section 198B is a recent addition to the CrPC, introduced after the Criminal Law (Amendment)
Act, 2013, following the recommendations of the Justice JS Verma Committee. This provision
pertains to a new offence under Section 376 of the IPC, making sexual intercourse by a husband
with his wife during separation punishable. Section 198B delineates the conditions that must
be met before a court can take cognizance of this offence.

13. Section 199: Prosecution For Defamation

Prosecution for Defamation
Filing of Complaint: According to Section 199(1) of the CrPC, the court cannot initiate legal
action for defamation charges mentioned in Chapter XXI of the IPC unless the victim files a
complaint. However, if the victim is unable to file a complaint, a third party can do so with the
court’s permission.

Exception for High-Ranking Officials:

Section 199(2) provides an exception to Section 193, stating that a court of sessions can take
cognizance of offences under Chapter XXI of the IPC if they are alleged to have been
committed against high-ranking officials such as the President, Vice President, Governor or
Minister. In such cases, the complaint must be made in writing by the Public Prosecutor.

Contents of Complaint:

Section 199(3) pertains to the ‘Contents of Complaint’ and requires that the complaint includes
details about the facts of the offence of defamation, its nature and every necessary point that
would provide sufficient notice to the accused who committed the offence.

Consent for Certain Officials:

Section 199(4) states that the court cannot take cognizance of offences punishable under
Chapter XXI of the IPC against the Governor, Public servant and Minister of State unless the
complaint is made by the Public Prosecutor with the consent of the State Government.
Similarly, if the offence is alleged to have been committed against the President, the Vice
President or a Public Servant employed under the Union, the court cannot take cognizance
unless the complaint is made by the Public Prosecutor with the consent of the Central
Government.

Time Limit for Filing Complaint:

Section 199(5) mandates that the complaint must be made by the public prosecutor within 6
months from the date of the offence, as per the aforementioned provisions.

Option for Public Servant:

Section 199(6) states that a public servant has the option to file a complaint on their own behalf
in a Magistrate Court.

Conclusion

Understanding and adhering to the conditions requisite for the initiation of proceedings play a
pivotal role in upholding the principles of justice, fairness, and legal integrity within the
criminal justice system. These conditions requisite for the initiation of proceedings, as
delineated in the Criminal Procedure Code, serve as safeguards against arbitrary or baseless
legal actions.

By necessitating prerequisites such as consent, proper documentation, and adherence to

procedural norms, these conditions ensure that legal proceedings are initiated on a legitimate
and justified basis. This not only protects individuals from unwarranted prosecution but also
contributes to the overall credibility and effectiveness of the legal system.

Importantly, compliance with these conditions requisite for the initiation of proceedings fosters
a balanced and principled approach to law enforcement, reinforcing the importance of fairness,
due process, and the rule of law in the administration of justice.

.module 06
 Framing of charge

What is a Charge under CrPC?

The term ‘Charge’ is defined in Section 2(b) of the Code of Criminal Procedure (CrPC), 1973,
as “any head of charge when the charge contains more heads than one.” This section provides
definitions for both ‘charge’ and ‘charges.’

A charge represents a formal accusation made by the court against an individual accused of
committing an offence. In essence, a charge is a legal term used to describe an allegation.
Similarly, when an allegation against an individual encompasses multiple elements, it is
referred to as ‘charges.’

To illustrate this with an example: Suppose an individual, A, is accused by B in a hit-and-run

case, resulting in the filing of a First Information Report (FIR). Subsequently, the police will
present a report to the court, detailing the offence A is alleged to have committed, along with
the progress of the investigation.

After careful consideration, the court will frame charges against A. In the given scenario, the
court might frame charges of Rash Driving (as per Section 279 of the Indian Penal Code, 1860)
and Culpable Homicide not amounting to Murder (as per Section 299 of the IPC) to initiate the
trial. However, if A had been accused solely of Rash Driving, the court would have framed a
single charge against him.

Chapter XVII of the CrPC deals with ‘Charges.’ Section 228 of the CrPC deals with framing
of charges.

Meaning of Framing of Charges

Framing of charges in a criminal case is the formal accusation of an individual committing a

specific offence or crime. During this process, the court reviews the evidence and the
allegations presented by the prosecution and if it finds sufficient grounds to believe that the
accused has committed the offence, it formulates and formally presents the charges against the
accused.
 The framing of charges under CrPC is a crucial step in criminal proceedings because it serves
several important purposes:

 Informing the Accused: It informs the accused of the specific offence they are being charged
with, along with the details of the allegations against them. This ensures that the accused is
aware of the nature of the accusation.
 Establishing Legal Foundation: It establishes the legal foundation for the trial to proceed.
Once charges are framed, the trial can move forward and the accused can prepare their defence.
 Transparency: It promotes transparency in the legal process by clearly defining the scope of
the case and the charges brought against the accused.
 Protection of Rights: It safeguards the rights of the accused by ensuring that they are aware
of the charges and can exercise their right to defend themselves in court.
 Setting the Stage for Trial: It marks the beginning of the trial phase, where evidence is
presented, witnesses are called and legal arguments are made.

Contents of Charge

Purpose of a Fair Trial: The primary requirement under the CrPC for a fair and just trial is to
ensure that the accused is precisely and accurately informed of the offence with which they are
charged. This notification is crucial as it provides the accused with a fair opportunity to prepare
their defence.

Sections 211 and 212 of the CrPC: These sections prescribe the forms and contents of the
charge in criminal cases. They establish the framework for drafting charges in a manner that
clearly describes the offence to the accused.

When Additional Particulars Are Required: In cases where the nature of the offence is such
that it cannot be adequately described by the particulars specified in Sections 211 and 212,
additional information about the manner in which the offence was committed by the accused
must be included in the charge. This ensures that the accused receives sufficient notice of the
offence with which they are charged.

Key Elements in Section 211 of the CrPC: This section specifies that every charge should
include:

 The offence the accused is charged with.

 If the offence has a specific name under the law, it should be described by that name.
 The definition of the offence under the relevant law if it doesn’t have a specific name.
 The law and the section of the law under which the offence is alleged to have been committed.
Illustration of Section 211: An illustration is provided to clarify how Section 211 works. For
example, if an individual, A, is charged with the murder of B, it signifies that the act of A falls
within the definition of murder as mentioned in Sections 299 and 300 of the Indian Penal Code.
It also means that the act of A doesn’t fall within any of the General Exceptions outlined in the
Indian Penal Code. Additionally, it specifies that A’s act doesn’t fall into any of the five
exceptions to Section 300, or if it does, it identifies which specific exception(s) apply.

Equivalent Statement: When a charge is framed against an accused, it is considered

equivalent to stating that the accused, while committing the offence, has fulfilled all the legal
conditions required to constitute that offence in the particular case. This means that all elements
of the offence must be satisfied for the charge to be valid.

Language of the Court: Charges must be written in the language of the court to ensure clarity
and understanding.

Framing of Charges

The process of framing charges involves the court’s determination that the accused individual
is likely to have committed a specific offence. This determination is made after a careful
examination of the police report, along with other pertinent documents and after hearing
arguments from both parties. Framing of charges serves as the initial step in commencing a
trial against the accused.

It is essential to note that although framing charges under CrPC is a vital step that informs the
accused of the allegations against them, it is not mandatory in all legal proceedings.

Framing of Charges under Section 228 of the CrPC

Section 228(1) in The Code Of Criminal Procedure, 1973

(1) If, after such consideration and hearing as aforesaid, the Judge is of the opinion that there
is ground for presuming that the accused has committed an offence which-
 (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief
Judicial Magistrate shall try the offence in accordance with the procedure for the trial of
warrant- cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

Principles Related to Framing of Charge under CrPC

The framing of charges in criminal cases is guided by several fundamental principles to ensure
a fair and just legal process. Some key principles related to the framing of charges include:

 Presumption of Innocence: The accused is presumed innocent until proven guilty beyond a
reasonable doubt. Charges are framed based on a prima facie case but do not imply guilt.
 Due Process: The accused has the right to be informed of the charges against them and to have
a fair opportunity to prepare their defence.
 Specificity: Charges must be clear, specific and accurately describe the alleged offence to
ensure the accused understands the nature of the accusation.
 Evidence-Based: Charges are framed based on evidence and allegations presented by the
prosecution. The court assesses whether there are reasonable grounds to proceed.
 Fair Notice: The accused must receive sufficient notice of the offence to prepare a defence,
preventing surprise or ambiguity in the trial.
 Legal Definitions: Charges should use legal definitions and terminology consistent with the
law under which the offence is punishable.
 Transparency: The framing of charges promotes transparency in legal proceedings, defining
the scope and nature of the case.
 Protection of Rights: It safeguards the rights of the accused, including the right to remain
silent and the right to legal representation.
 Speedy Trial: Delays in framing charges can affect the principle of a speedy trial, so charges
should be framed promptly.
 Legal Standards: Charges should meet the legal standards for each specific offence, ensuring
accuracy and fairness.

Types of Trials for Framing of Charges in CrPC

The Code of Criminal Procedure outlines different types of trials, including:

Summary Trial: Summary trials are conducted for offences that carry a maximum punishment
of up to two years of imprisonment or for offences related to theft, receiving stolen property,
or assisting in retaining stolen property when the value involved is less than Rs. 2,000. In
summary trials, there is no requirement for the formal framing of charges.

Summons Case: Summons cases involve offences for which the maximum imprisonment term
does not exceed two years. According to Section 251, when the accused person is brought
before the court or voluntarily appears, they are informed about the specific offence they are
alleged to have committed. In such cases, the court asks the accused whether they plead guilty
or need to present a defence. The formal framing of charges is not necessary in summons cases.

Warrant Case (Sections 238-250): In warrant cases, the formal framing of charges in writing
is required.

Trial before Sessions Court (Sections 225-227): Trials before the Sessions Court also
necessitate the formal framing of charges in writing.

Trial Before the Court of Session (Chapter XVIII)

The process of framing charges under CrPC in the context of trials before a Court of Session
is governed by Chapter XVIII of the CrPC. Section 228 of the CrPC outlines the specific
procedures for framing charges in cases exclusively triable by the Court of Sessions and listed
in the First Schedule of the CrPC.

Here’s an explanation of the key provisions related to the framing of charges in trials before a
Court of Session:

Exclusive Trial by Court of Sessions: Section 228(1) stipulates that when the Court of
Session considers the police report, examines other relevant documents and hears both parties
and it finds reasonable grounds to presume the accused’s involvement in the commission of
the offence, the following steps are taken:

a. Non-Exclusive Cases: If the case is not exclusively triable by the Court of Session, the court
may frame a charge against the accused. Subsequently, it can transfer the case to the Chief
Judicial Magistrate or any other Judicial Magistrate of First Class. The accused is then directed
to appear before that court on a specified date. The Magistrate will then proceed to try the
offence based on the charge framed by the Court of Session, following the procedure for trial
under Warrant-Cases.

b. Exclusive Cases: If the case falls exclusively within the jurisdiction of the Court of Sessions,
the court shall frame a charge against the accused.

Explanation of Charges: In cases where charges are framed by the Court of Session, the
charges must be clearly explained to the accused and the accused is asked whether they plead
guilty to the offence.

Necessity of Formal Charges: It is imperative that formal charges are framed when there is a
presumption of the accused’s involvement in the offence, indicating a prima facie case. This is
particularly crucial when the offence is exclusively triable by the Court of Session. Failure to
adhere to this procedure may result in higher courts overturning the trial.

In essence, the process of framing of charges in trials before a Court of Session is a critical step
to ensure that the accused is informed of the allegations against them and to maintain a fair and
just legal process. The Court of Session must exercise its judgment to frame charges
appropriately, as per the established procedure, to avoid legal complications in subsequent
proceedings.

Trial of Warrant Cases By Magistrate (Chapter XIX)

In the context of trials of warrant cases by a Magistrate, which are covered under Chapter XIX
of the Code of Criminal Procedure, Section 240 of the CrPC outlines the procedure for framing
charges. Warrant cases typically involve offences that are punishable with imprisonment for a
term exceeding two years.

Here’s an explanation of the key provisions related to the framing of charges by a Magistrate
in warrant cases:

Magistrate’s Satisfaction: According to Section 240(1) of the CrPC, if the Magistrate is

satisfied that the matter before them is triable and there are reasonable grounds to presume that
the accused has committed the offence, the Magistrate shall proceed to frame charges in
writing.

Framing of Charges: The Magistrate formally frames charges in writing. This is a crucial step
in the legal process and involves specifying the allegations against the accused.

Explanation of Charges: Subsequently, the charges are explained to the accused in a clear
and understandable manner. The accused is then asked whether they plead guilty to the charges.
This process ensures that the accused fully understands the nature of the allegations against
them.

It’s important to note that in warrant cases, it is the legal duty of the court to frame formal
charges. This step is essential for maintaining transparency and fairness in the legal
proceedings, allowing the accused to respond to the charges and exercise their legal rights
appropriately. The formal framing of charges helps establish a clear foundation for the trial and
ensures that the accused is fully informed about the case against them.

Judicial Analysis of Sections 238 & 240

These judicial observations provide valuable insights into the procedure and essentials of
framing charges under CrPC in various legal contexts:

Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya: The Supreme Court
emphasised that during the stage of framing charges, the courts should consider that the
allegations made against the accused are prima facie believable. The framing of charges relies
on the “subjective satisfaction” of the courts. This implies that the court must assess whether
there is a reasonable basis to presume the accused’s involvement in the offence.

State of Tripura v. Bhupen Dutta Bhowmik: The court underscored that at the stage of
framing charges, the courts are obligated to examine the broad possibilities of the case. They
must take into account preliminary evidence and ensure that the charges are justified based on
the allegations made.

Bal Krishna Pandey v. State of Uttar Pradesh: In a case where the trial court took an
extended period to frame charges, the Supreme Court stressed the importance of the “principle
of speedy trial.” Delays in framing charges can affect the overall trial process and can be
detrimental to the accused who may remain in custody during this time.

Mauvin Godinho v. State of Goa: The Supreme Court outlined the standard for framing
charges under Section 228 Cr.P.C. It emphasised that a prima facie case against the accused is
established when the evidence, taken as a whole, is sufficient to induce the court to believe in
the existence of essential elements of the charge or to consider their existence highly probable.
However, the court should refrain from conducting a detailed examination of evidence at this
stage, as if it were a trial.

Minakshi Bala v. Sudhir Kumar & Ors: This case clarified that once a charge has been
framed under Section 240, High Courts do not possess inherent powers to quash charges based
solely on the police report or other documents. Such an action should be rare and limited to
situations involving forensic exigencies or formidable compulsions.

What is the Time Limit for Charge Sheet?

The charge sheet is to be filed within 60 days from the date of arrest of the accused in cases
triable by lower courts and 90 days in cases triable by Court of Sessions.

Conclusion

Framing of charges is a critical step in the criminal justice system. It involves the formal
process by which a court formally accuses an individual (the accused) of committing a specific
offence based on evidence and allegations presented by the prosecution. Framing of charges in
CrPC serves to inform the accused of the charges against them, establish the legal foundation
for a trial, ensure transparency in the legal process, protect the accused’s rights and set the stage
for the trial itself.

It’s important to understand that the framing of charges does not equate to a determination of
guilt; it is simply the formal accusation. The accused is considered innocent until proven guilty
in a court of law and the trial is the venue where evidence is presented, witnesses are examined
and the ultimate determination of guilt or innocence is made.
Overall, framing of charges is a fundamental component of the criminal justice system,
ensuring due process, fairness and the protection of the rights of both the accused and the
prosecution.

Module 07

Trial and execution proceedings

Trail of warrant cases by magistrates

Warrant cases under CrPC serve as a mechanism to address and adjudicate serious crimes,
upholding the principles of justice and maintaining the integrity of the legal system. Through
the appropriate application of laws and fair trial procedures, warrant cases contribute to
maintaining law and order and ensuring public safety.

Contents

1. Meaning of Warrant Cases

2. Essential Elements of Warrant Cases under CrPC

3. Trial of Warrant Cases

4. Difference Between Summun Case and Warrant Case

4.1. Summons Case

4.2. Warrant Case

5. Conclusion

Meaning of Warrant Cases

Warrant cases refer to cases involving a criminal offence with the death penalty, life
imprisonment, or imprisonment for a period exceeding two years. These cases typically involve
serious or grave offences that are considered cognizable, allowing the police to make arrests
 without a warrant. A court of session tries the most severe warrant cases, while Magistrates
handle the rest.

Essential Elements of Warrant Cases under CrPC

Certain essential elements of warrant cases include:

 Charges must be specified in a warrant case.

 The personal appearance of the accused is mandatory.
 Warrant cases under CrPC cannot be converted into summons cases.
 The accused has the right to examine and cross-examine witnesses multiple times.
 The Magistrate must ensure compliance with the provisions of Section 207 of the Code of
Criminal Procedure (Cr.P.C.).
 Section 207 of the Cr.P.C. 1973 mandates the provision of copies of relevant documents, such
as the police report, FIR, and recorded statements, to the accused.
 The stages of trial in warrant cases are outlined in Sections 238 to 250 of the Code of Criminal
Procedure, 1973.
 Chapter XIX of the Cr.P.C. governs the trial of warrant cases, while the trial of summons cases
falls under Chapter XX of the Cr.P.C.
 The discharge of the accused in warrant cases is covered under Section 239 of the Cr.P.C. and
Section 245(2) of the Code of Criminal Procedure, 1973, as applicable to such cases.
The recall of summons issued against the accused was addressed in the cases of Adalat Prasad
v. Rooplal Jindal (338: 2004 SCC (Cri) 1927) and K.M. Mathew v. State of Kerala (1992
SCC (Cri) 88). Also, in Subramanium Sethuraman v. State of Maharashtra, the Supreme
Court was reminded of its decision regarding the warrant procedure in the Adalat Prasad case.

Trial of Warrant Cases

Chapter XIX of the Code of Criminal Procedure, 1973 provides a framework for the procedures
related to warrant cases that are triable by Magistrates. This chapter divides warrant cases into
two categories:

Warrant cases instituted on a police report (Section 283-243):

These sections pertain to cases where the police have filed a report regarding the offence. The
procedures outlined in Sections 283 to 243 of Chapter XIX govern such cases.
Warrant cases instituted otherwise than a police report (Section 244-247):

These sections apply to cases where the initiation of the case is not based on a police report.
The procedures specified in Sections 244 to 247 of Chapter XIX are applicable in these
instances.

Difference Between Summun Case and Warrant Case

There are two main types of criminal cases: Summons Cases and Warrant Cases. The key
distinction between these two types lies in the severity of the offence and the potential
punishment involved.

Summons Case
A summons case refers to an offence that does not fall under the category of a warrant case.
These offences typically carry less severe penalties compared to warrant cases under CrPC. In
a summons case, the accused is usually issued a summons by the court to appear before it on a
specified date. The case proceeds through the court’s summons process, and the accused is
given an opportunity to present their defence. An example of a summons case is the case
of Public Prosecutor v. Hindustan Motors, Andhra Pradesh, 1970, where the convicted
person was sentenced to pay a fine of Rs. 50.

Warrant Case
A warrant case involves offences that are punishable by death, life imprisonment, or
imprisonment exceeding two years. These offences are considered more serious and grave in
nature. In a warrant case, the police have the authority to arrest the accused without a warrant.
The trial of a warrant case commences either through filing a First Information Report (FIR)
at a police station or by directly filing it before a Magistrate. It is important to note that the
issuance of a warrant in a summons case does not convert it into a warrant case, as observed in
the case of Padam Nath v. Ahmad Dobi, 1969.
 Warrant cases are distinguished from summons cases based on the severity of the offence and
the potential penalties involved. In summons cases, the accused is issued a summons to appear
before the court, while in warrant cases, the police can arrest the accused without a warrant.

Summons Case Warrant Case

Offence
Less severe offences Serious and grave offences
Severity

Potential Punishable by death, life imprisonment, or

Generally lower penalties
Penalty >2 years’ imprisonment

Accused’s Accused is issued a summons by

Arrested by the police without a warrant
Notice the court

Case Directly filed before the FIR filed at a Police Station or before the
Initiation Magistrate or Police Station Magistrate

Remains a summons case, even if Remains a warrant case, regardless of

Case Nature
a warrant is issued summons issuance

Trial of summons cases by magistrates

The Code of Criminal Procedure classifies criminal cases into two main categories: Summon
cases and Warrant cases. Summons cases are described in Section 2(w) of the Code of Criminal
Procedure. Any case that doesn’t fall under warrant cases is considered a summons case.
Summons cases include non-serious, bail-eligible, and compoundable offences. These cases
are exclusively heard by a Magistrate.

In simple terms, a summons is a court order that commands someone to appear in court and
respond to a complaint made against them. Summons cases typically involve less complicated
and faster trials because the offences are not of an urgent nature. According to Section 204(1)
(a) of the CrPC, a Magistrate issues a summons to the accused person.

Contents

1. Meaning of Summons Case

2. What is Summon in CrPC?

3. Trial of Summon Cases

3.1. Accusation Explanation (Section 251)

3.2. Guilty Plea (Section 252)

3.3. Guilty Plea in Absence (Section 253)

3.4. Trial Procedure (Section 254)

3.5. Verdict (Section 255)

3.6. Complainant Absence or Death (Section 256)

3.7. Withdrawal of Complaint (Section 257)

3.8. Stopping Proceedings (Section 258)

3.9. Conversion to Warrant Case (Section 259)

3.10. Compensation for Accused (Section 250)

4. Landmark Cases on Summon Cases

5. Analysis of Summon Trails

6. Conclusion

Meaning of Summons Case

A “summon” is a legal document that orders a person to appear in court and respond to a
complaint against them. This order is issued by a Magistrate to the accused individual as per
Section 204(1) (a) of the Cr.P.C, 1973.

A “summon case” refers to a legal case related to an offence that is not considered a warrant
case. Warrant cases typically involve severe punishments like the death penalty, life
imprisonment, or imprisonment exceeding two years. In contrast, summon cases involve
offences where the punishment does not exceed two years of imprisonment. These cases are
generally less serious in nature and need to be resolved quickly, without compromising the
principles of a fair trial.

The procedure for handling summons cases is outlined in Sections 251 to 259 of the Cr.P.C,
1973. This procedure is less formal compared to other types of trials, such as session trials or
warrant cases initiated based on a police report or other means.

What is Summon in CrPC?

A “summon” refers to a legal document issued by a court, typically a Magistrate, ordering a

person to appear before the court. This document is used in summon cases, which generally
involve less serious offenses.

When a summon is issued, it serves as a command for the individual named in it to appear in
court on a specified date and time to respond to a complaint or charges filed against them. The
individual may be required to answer questions, enter a plea (such as guilty or not guilty), or
provide their defence during the court proceedings.

Summons are employed to ensure that individuals involved in legal matters, whether as accused
persons or witnesses, participate in the legal process and contribute to the resolution of the
case. Failure to comply with a summons can lead to legal consequences, such as arrest warrants
or contempt of court charges.

Trial of Summon Cases

The trial of summon cases in CrPC has been dealt with as:
Accusation Explanation (Section 251)
In summon cases, there’s no need to formally charge the accused. Instead, they are told about
the accusation and asked if they admit guilt.

Guilty Plea (Section 252)

If the accused admits their guilt, the Magistrate records their plea and convicts them.

Guilty Plea in Absence (Section 253)

If someone, on behalf of the accused, admits guilt, the Magistrate can, at their discretion, order
the accused’s conviction.

Trial Procedure (Section 254)

If Sections 252 and 253 don’t result in conviction, the Magistrate proceeds with a full trial,
recording evidence from both prosecution and defence.

Verdict (Section 255)

After examining all the evidence and witnesses, the Magistrate decides whether to convict or
acquit the accused based on valid reasons.

Complainant Absence or Death (Section 256)

If a summon case is based on a complaint, and the complainant is absent, the Magistrate can
acquit the accused or adjourn the case. In some cases, the trial may proceed without the
complainant.

Withdrawal of Complaint (Section 257)

If the complainant withdraws their complaint with the Magistrate’s permission before the final
decision, the accused is acquitted.

Stopping Proceedings (Section 258)

In summon cases not based on a complaint, with permission from higher judicial authorities,
the Magistrate can halt the trial, but they must provide a good reason. If stopped after the main
witness’s evidence, it’s like acquitting the accused; before the main witness, it’s like
discharging them.
Conversion to Warrant Case (Section 259)
If a summon case carries a punishment of more than six months’ imprisonment and it’s in the
interest of justice, it can be converted into a warrant case.

Compensation for Accused (Section 250)

If there’s insufficient evidence for the accusation, the accused can be acquitted or discharged.
The Magistrate can order compensation for the accused but must issue a notice first. If the
complainant doesn’t pay, they can be imprisoned for up to 30 days.

Landmark Cases on Summon Cases

Manbodh Biswal vs. Samaru Pradhan (1980 Cri LJ 1023): This case emphasized the
mandatory nature of Section 251 of CrPC. It argued that when an accused is brought before a
Magistrate, they must be informed about the charges against them and asked if they want to
plead guilty or continue with the trial. In this particular case, because the accused wasn’t
informed about the charges, the trial couldn’t proceed.

S. Rama Krishna vs. S. Rami Reddy [(2008) 5 SCC 535]: This judgment clarified Section
256 of CrPC. It stated that when the complainant is absent from the trial for a significant period
and doesn’t respond to repeated summons, the Magistrate has the authority to acquit the
accused of all charges.

Driver Mohmed Valli & Ors. Vs. State (1960): This case highlighted the distinction between
issuing a summons and ordering the issuance of a summons. It pointed out that a summons is
served by police officers directly to the intended recipient.

Hemedranath Chowdhury vs. Smt. Archana Chowdhury (AIR 1971 Cal 244, 1971 CriLJ
817): This judgment focused on Section 64 of CrPC. It stressed that to locate the person being
summoned, adequate efforts must be made and proven in accordance with the law.

Analysis of Summon Trails

The summon trials is intentionally less formal to ensure a quick resolution. However, Section
258 poses a challenge as it doesn’t explicitly grant Magistrates the authority to dismiss cases
in the absence of substantial grounds, which can be disadvantageous to the accused. In
the K.M. Matthew case, the court suggested that Magistrates have an implied power to dismiss
cases when the allegations don’t establish a crime. This viewpoint has been contested in several
legal decisions.

In the Arvind Kejriwal case, the Supreme Court noted that the law doesn’t specifically
empower Magistrates to dismiss cases under Section 258. Instead, it directed such cases to the
high court to be handled under Section 482. However, it’s important to note that even the high
court would need to assess whether there are sufficient grounds to proceed against the accused,
potentially delaying the primary goal of summon cases: speedy trials.

Although this issue has been addressed in various cases before the apex court, it warrants
further examination to ensure a fair trial and protect the rights of the accused, especially in
situations where their rights may be jeopardized.

Conclusion

Summon cases are legal proceedings that pertain to less serious offences. In these cases, an
individual accused of committing a crime is issued a summons by a court, ordering them to
appear before a Magistrate. Unlike more complex trials, summon cases involve offences where
the punishment typically does not exceed two years of imprisonment.

The accused is informed about the charges and given the option to plead guilty or proceed with
the trial. Summon cases aim for a speedy resolution, emphasizing efficiency. These cases are
distinct from warrant cases, which deal with more severe offences and require the issuance of
an arrest warrant. Summon cases play a crucial role in the legal system by handling less serious
criminal matters in a straightforward and expedited manner.

Summary trials

In India, summary trials in CrPC are governed by Section 260 to 265. They are typically used
for cases involving petty offences, where the maximum punishment is up to two years of
imprisonment, or cases that are deemed to be of a summary nature by law.

Summary trials under the Code of Criminal Procedure (CrPC) provide a streamlined and
expeditious legal process for the quick disposal of certain types of criminal cases in India.
These summary trials are designed to ensure swift justice by simplifying procedures and
reducing timelines, with the aim of delivering timely and efficient resolutions for certain
offences.

The criminal justice system in India is tasked with the responsibility of delivering justice in a
timely and efficient manner. However, the sheer volume of cases and the procedural
complexities often lead to delays in the disposal of cases, resulting in a backlog of pending
cases and a strain on the judicial system.

Contents

1. Meaning of Summary Trials in CrPC

2. Key Features of Summary Trials under Criminal Procedure Code
3. Relevant Laws Governing Summary Trials in CrPC
4. Who can conduct summary trials in CrPC?
5. Offences tried Summarily
6. Procedure for summary trials in CrPC
7. Record in summary trials under Criminal Procedure Code
8. Judgment in cases tried summarily
9. Language of record and judgment
10. Conclusion

Meaning of Summary Trials in CrPC

Summary trials, as per the CrPC, are governed by Sections 260 to 265, and they are designed
to provide a summary and expedited process for the trial of certain types of offences. These
trials are intended for cases where the maximum punishment is up to two years of imprisonment
or cases that are considered to be of a summary nature by law.

The objective of summary trials is to ensure that justice is delivered swiftly, without
compromising on the principles of natural justice and fair trial.

No sentence of imprisonment for a term exceeding three months shall be passed in the case
of any conviction under this Chapter.

Key Features of Summary Trials under Criminal Procedure Code

 Summary trials have certain unique features that set them apart from regular trials. Let’s
explore some of the key features of summary trials under CrPC:

Expedited Process: One of the primary features of summary trials is the expedited process.
The timelines for various stages of the legal process, such as investigation, filing of charges,
and conducting the trial, are significantly reduced compared to regular trials. This ensures that
the case progresses swiftly and is disposed of in a timely manner.

Simplified Procedure: The procedure for summary trials is simpler compared to regular trials.
The court has the discretion to skip certain formalities, such as recording detailed evidence,
and can rely on a summary of evidence to arrive at a decision. The rules of evidence are also
relaxed, making the process less formal and more efficient.

Limited Punishment: Summary trials are meant for cases where the maximum punishment is
up to two years of imprisonment, although in some cases, it may be extended to three years
with the consent of the accused. This ensures that only offences of a certain gravity are tried
summarily, and cases with higher potential punishments are dealt with through regular trials.

Limited Right of Appeal: The right of appeal in summary trials under the Criminal Procedure
Code is limited compared to regular trials. An accused can only appeal to a higher court on
points of law, rather than on questions of fact or mixed questions of law and fact. This helps in
expediting the appellate process and reduces delays in the disposal of cases.

Summary Disposal: One of the unique features of summary trials is the provision for summary
disposal. If the accused pleads guilty, and the court is satisfied, the case may be disposed of
summarily without a full-fledged trial. This further accelerates the process and helps in the
quick resolution of cases.

Relevant Laws Governing Summary Trials in CrPC

Summary trials in CrPC are governed by specific sections of the Code. Some of the relevant
laws that govern summary trials in India are:

 Section 260: This section defines the offences that can be tried summarily, which include
offences where the maximum punishment is up to two years of imprisonment or offences that
are considered to be of a summary nature by law.
 Section 261: This section provides a summary trial by Magistrate of the second class.
 Section 262: This section deals with the procedure to be followed in summary trials.
 Section 263: This section provides deals with a record in summary trials.
 Section 264: This section provides for judgment in cases tried summarily.
 Section 265: Language of Record and Judgment

Who can conduct summary trials in CrPC?

According to Section 260 (1) of the Criminal Procedure Code,

 Chief Judicial Magistrate;

 Metropolitan Magistrate;
 Magistrate of the first class specially empowered in this behalf by the High Court,
may, if he thinks fit, try in a summary way.

According to Section 261, the High Court may confer on any Magistrate invested with the
powers of a Magistrate of the second class power to try summarily any offence which is
punishable only with fine or with imprisonment for a term not exceeding six months with or
without fine, and any abetment of or attempt to commit any such offence.

Offences tried Summarily

According to Section 260 (1) of the Criminal Procedure Code, the following offences can be
tried in a summary way:

 offences not punishable with death, imprisonment for life or imprisonment for a term exceeding
two years;
 theft, under section 379, section 380 or section 381 of the Indian Penal Code, (45 of 1860)
where the value of the property stolen does not exceed two hundred rupees;
 receiving or retaining stolen property, under section 411 of the Indian Penal Code, (45 of 1860)
where the value of the property does not exceed two hundred rupees;
 assisting in the concealment or disposal of stolen property, under section 414 of the Indian
Penal Code, (45 of 1860) where the value of such property does not exceed two hundred rupees;
 offences under sections 454 and 456 of the Indian Penal Code(45 of 1860);
 insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation,
under section 506 of the Indian Penal Code(45 of 1860);
 abetment of any of the foregoing offences;
 an attempt to commit any of the foregoing offences, when such attempt is an offence;
 any offence constituted by an act in respect of which a complaint may be made under section
20 of the Cattle-trespass Act, 1871(1 of 1871).
When, in the course of a summary trial it appears to the Magistrate that the nature of the case
is such that it is undesirable to try it summarily, the Magistrate shall recall any witnesses who
may have been examined and proceed to re-hear the case in the manner provided by this Code.

Procedure for summary trials in CrPC

According to Section 262:

(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-
case shall be followed except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case
of any conviction under this Chapter.

Record in summary trials under Criminal Procedure Code

According to Section 263:

In every case tried summarily, the Magistrate shall enter, in such form as the State Government
may direct, the following particulars, namely:-

(a) the serial number of the case:

(b) the date of the commission of the offence;

(c) the date of the report or complaint;

(d) the name of the complainant (if any);

(e) the name, parentage and residence of the accused;

(f) the offence complained of and the offence (if any) proved, and in cases coming under clause
(ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in
respect of which the offence has been committed;
(g) the plea of the accused and his examination (if any);

(h) the finding;

(i) the sentence or other final order

(j) the date on which proceedings were terminated.

Judgment in cases tried summarily

According to Section 264:

In every case tried summarily in which the accused does not plead guilty, the Magistrate shall
record the substance of the evidence and a judgment containing a brief statement of the reasons
for the finding.

Language of record and judgment

According to Section 265:

(1) Every such record and judgment shall be written in the language of the Court.

(2) The High Court may authorize any Magistrate empowered to try offences summarily to
prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf
by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by
such Magistrate.

Conclusion

Summary trials in Criminal Procedure Code are a valuable tool in ensuring swift justice for
certain types of offences in India. They provide an expedited and simplified process for the
disposal of cases, ensuring timely justice and reducing delays in the judicial system. The
relevant laws governing summary trials, such as Section 260 to 265 of the CrPC, outline the
procedure and limitations of these trials.

The significance of summary trials in CrPC lies in their efficiency, cost-effectiveness,

deterrence, access to justice, and flexibility. By promoting expeditious and streamlined
resolution of cases, summary trials contribute to the overall effectiveness of the Indian criminal
justice system. However, it is important to ensure that the principles of natural justice and fair
trial are upheld, and that summary trials in CrPC are conducted in a manner that safeguards the
rights of the accused.

What is bail? Provisions related to bail

Introduction

Article 21 of the Constitution of India guarantees the protection of life and personal liberty to
all persons. It guarantees the fundamental right to live with human dignity and personal liberty,
which in turn gives us the right to ask for bail when arrested by any law enforcement authority.

The provision of anticipatory bail under Section 438 was introduced in the Code of Criminal
Procedure in 1973 (hereinafter referred to as CrPC or Criminal Procedure Code). It is based
on the recommendation of the Law Commission of India, which in its 41st report,
recommended the incorporation of a provision of anticipatory bail. The report stated that “The
necessity for granting anticipatory bail arises mainly because sometimes influential persons try
to implicate their rivals in false cases for the purpose of disgracing them or for other purposes
by getting them detained in jail. Apart from false cases, where there are reasonable grounds for
holding that a person accused of an offence is not likely to abscond, or otherwise misuse his
liberty while on bail, there seems no justification to require him to first to submit to custody,
remain in prison for some days and then apply for bail.”

The ‘Bail’ provision, especially anticipatory bail, is based on the legal principle of
“presumption of innocence” i.e. every person accused of any crime is considered innocent until
proven guilty. This is a fundamental principle mentioned in the Universal Declaration of
Human Rights under Article 11.

Meaning of bail

‘Bail’ connotes the process of procuring the release of an accused charged with certain offences
by ensuring his future attendance in the court for trial and compelling him to remain within the
jurisdiction of the court.
Definition of bail, as per the Black’s Law Dictionary is that bail is – “the security required by
a court for the release of a prisoner who must appear at a future time.” The objective of arrest
is to deliver justice by presenting the accused before the Court. However, if the same objective
can be achieved without making any arrest then there is no need to violate his liberty. That’s
why bail can be granted to the accused person for conditional release.

Legal position of bail

The term ‘Bail’ has not been defined under the Criminal Procedure Code, 1973. Only the term
‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a) of Cr. PC.
The provisions relating to bail and bail bonds are mentioned under Section 436-450 of the
Criminal Procedure Code.

Categories of bail

For the purpose of bail, offences are classified into bailable and non-bailable offences which
are discussed below :

Bailable offences

According to Section 2(a) of CrPC bailable offence means an offence that is classified as
bailable in the First Schedule of the Code, or which is classified as bailable under any other
law. An accused can claim bail as a matter of right if he is accused of committing a bailable
offence. The police officer or any other authority has no right to reject the bail if the accused
is ready to furnish bail. Under Section 436 of CrPC 1973, a person accused of a bailable offence
at any time while under arrest without a warrant and at any stage of the proceedings has the
right to be released on bail.

Non-bailable offences

A non-bailable offence is defined as any offence which is not a bailable offence. A person
accused of a non-bailable offence cannot claim bail as a right. A person accused of non-bailable
offences can be granted bail provided the accused does not qualify the following conditions:
  There are reasonable grounds to believe that he has committed an offence punishable
with death penalty or life imprisonment.

 That the accused has committed a cognizable offence and he had been previously
convicted of an offence punishable with death, imprisonment for life or
imprisonment of seven years or more or if the accused been convicted on two or
more instances of a cognizable and non-bailable offence.
There are exceptional cases in which law gives special consideration in favour of cases where
the accused is a minor, a woman, a sick person etc. [Section 437(1) CrPC].

Different types of bail

Regular bail

Via this, the court orders the release of a person who is under arrest, from police custody after
paying the amount as bail money. An accused can apply for regular bail under Section
437 and 439 of CrPC.

Interim bail

This is a direct order by the court to provide temporary and short term bail to the accused until
his regular or anticipatory bail application is pending before the court. The Supreme Court
noticed the misuse of interim bail by the accused in Rukmani Mahato vs. the State of
Jharkhand.

Anticipatory bail

This is a direct order of Sessions or High Court to provide pre-arrest bail to an accused of a
crime. When the person has an apprehension of being arrested, the person can apply for
anticipatory bail. Sometimes, an application for anticipatory bail may go against the person, as
it might alert an investigation agency regarding the involvement of that person in a crime.
Important factors to be considered while granting anticipatory bail in India

Based on Section 438(1) of CrPC, the Supreme Court has enumerated a detailed and exhaustive
list of considerations while deciding anticipatory bail. They are as follows:-

 Gravity of crime and role of accused must be understood before the arrest.

 Previous record of accused, any imprisonment on conviction in respect of non

bailable offence, should be checked.

 Possibility that applicant will flee from justice.

 Chances of repetition of similar or other offences.

 Intention behind accusation is whether to injure or humiliate the applicant by

arresting him or her.

 Consider the exact role of the accused.

 Reasonable apprehension of tampering with evidence, witnesses and threatening the

complainant.

Standard conditions while granting anticipatory bail

 Accused should present himself / herself for interrogation by the investigation office
as and when asked to appear.

 Accused should not directly or indirectly try to induce, threaten, or promise to any
person related to the case who knows the facts of the case, so that he can be
dissuaded from disclosing the fact to the court or investigation officer.

 Accused should not leave the country with prior permission of the court.

 Any other condition which the honourable court deems fit.

Cancellation of bail

Under Section 437(5) of CrPC, the court which has granted bail can cancel it, if found
necessary under certain conditions. Per Section 439(2), the Sessions Court, High Court, or
Supreme Court can, suo moto, cancel the bail granted to the accused and transfer the accused
to custody. Per Section 389(2), an appellate court can also cancel the bail of the accused and
order the accused to be arrested and sent to custody.
Latest case laws

1. Re: Digendra Sarkar – Under Section 438 of the CrPC, the application for anticipatory bail
applied even before the First Information Report is registered. So, First Information Report
cannot be a condition precedent to applying for anticipatory bail.

2. Suresh Vasudeva vs. State – Section 438(1) applies only to non-bailable offences.

3. Sushila Agarwal vs. State – Supreme Court held that anticipatory bail should not be for a
fixed period, but it is open to the court to limit the tenure of anticipatory bail if any special
condition necessitates the same.

4. Gurbaksha Singh Sibbia and others vs.the State of Punjab – the Supreme Court opined :

 There are no provisions in the CrPC regarding time boundness of granting pre –
arrest anticipatory bail.

 The concerned court has the discretion to impose conditions for grant of anticipatory
bail including a limited period of protection etc., subject to considering any special
circumstances required.

Anticipatory bail as a fundamental right

Under the Constitution of India, every person has a fundamental right to life and personal
liberty. Article 21 is enshrined in our Constitution. The objective of this article is not to deprive
any person of his life or personal liberty except as per the procedure established by law. As a
person can not prepare their case for trial from behind the bars, so the provision of bail in law
is provided, to give a fair chance to fight their case with all possible measures. Apart from that
since an accused is considered innocent until proven guilty, incarceration in any form brings
disrepute to the person and restricts him from going about his daily affairs. Hence to avoid such
hardships, a person is provided with the remedy to apply for anticipatory bail.

Clause 4 was added to Section 438, through the Criminal Amendment Bill, 2018. The
legislature inserted four clauses under Section 438. According to the amendment, anticipatory
bail cannot be granted to a person accused of the offence of committing rape on a woman aged
under 16years, under 12 years, gang rape on a woman aged under 16 years of age and gang
rape of a woman under 12 years of age, punishable under Section 376(3), 376 AB, 376
DA and 376 DB respectively under the Indian Penal Code (Punishment of rape) 1860.

Rape is a heinous crime and there should be strict provisions under law to punish the convict.
However, there is a difference between an accused and being proclaimed a convict. There are
high chances of an accused being acquitted after a trial and hence denying the right of bail
entirely goes against the spirit of justice. Rape is a serious crime but nowadays people go to
any level to defame a person to take revenge on them, therefore the instances of filing false
cases of rape are also increasing. Hence, this amendment unjustly restricts the right to get
anticipatory bail.

Conclusion

The objective behind enacting Section 438 is to safeguard the liberty of a person. The need for
anticipatory bail arises mainly when any person has reason to believe that he may be arrested
on an accusation of having committed a non-bailable offence. Anticipatory bail is concerned
with the liberty of a person and presumes their innocence. It was held in the case of Gurbaksh
Singh Sibbia vs. the State of Punjab by a five-judge Supreme Court bench led by then Chief
Justice Y V Chandrachud that Section 438 (1) is to be interpreted in the light of Article 21 of
the Constitution. While Courts have time and again emphasised the need to uphold the liberty
of individuals and protect them from arbitrary arrests, one needs to remember that anticipatory
bails are not a matter of right like other types of bail.

Difference between regular bail & anticipatory bail

1. While regular bail is dealt with under Section 437 and Section 439 of the CrPC,
anticipatory bail is dealt with under Section 438 of the CrPC.

2. Regular bail can be granted by any judicial magistrate or court but anticipatory bail
can be granted by the High Court or the Session Court only.

3. Regular bail is a post-arrest legal process that is granted when the person is under
police custody while anticipatory bail is a pre-arrest legal process that is granted
when a person anticipates the possibility of his arrest for a non-bailable offence.

4. Bail is granted as a matter of right under section 437 but the power to grant
anticipatory bail is an extraordinary power that is to be used by the Court sparingly.
 5. While the CrPC of 1898 included the provision of regular bail, there was no specific
provision of anticipatory bail. It was only after the recommendation of the 41st
Commission Report of 1969, anticipatory bail became a part of the new CrPC of
1973.
Apart from the provision of bail, there is another provision that releases the detained persons,
known as Parole. Parole is an early release of a prisoner in exchange for a promise of good
behaviour and abidance of certain conditions imposed while granting parole. While bail is
granted to an accused during a trial or before the trial, Parole is granted to a convict who has
been serving his sentence in the prison. Parole is granted to the prisoner on behalf of his/her
good behaviour so that he/she can transit back into the society.

Parole

Derived from the French phrase ‘Je donne ma parole’ meaning ‘I give my word’, Parole is the
release of a prisoner either temporarily for a special occasion or completely before the sentence
ends on account of his good behaviour. It is a conditional release in which the prisoner promises
to abide by the conditions along with observance of certain restrictions in order to get the
privilege of returning back to society.

In parole, the prisoner is released, however, his quantum of the sentence remains intact, which
means in case of violation of the parole’s conditions, the parole can be cancelled, and the
prisoner can be brought back to the prison. It is important to note that parole is not a right
rather, it is a privilege given to the prisoners so that they can be reinstated in the social
environment and fulfil their duties and responsibilities as a citizen.

Parole is not included under Section 432 of the CrPC, which deals with suspension and
remission of sentences. As per the judgement of the apex court in the case of Sunil Fulchand
Shah v. Union of India, Parole does not amount to suspension of sentence, thus, leaving it out
of the scope of Section 432 of the CrPC. It is dealt with under the Prison Act, 1894 and Prison
Act, 1900.

All convicts except for convicts who are foreigners, a threat to national security, committed a
crime against the state, convicted of more than one murder, or convicted for rape or murder of
a child, shall be eligible for Parole. The aforementioned convicts might get parole at the
discretion of the authorities.

Types of parole

 Regular Parole: Regular parole is granted for a maximum period of one month,
except in special circumstances, to the convicts who have served their one year of
imprisonment. It is granted in situations like:

o Death of a family member;

o Marriage of a family member;

o Delivery of child by the wife of the convict;

o Accident or serious illness;

o Maintaining social ties;

o Damage due to natural calamities;

o Filing special leave petition in the Supreme Court.

 Custody Parole: Custody parole is granted in emergency situations like death of a
family member, marriage of a family member, serious illness, etc. It is granted for
a maximum period of 14 days and the prisoner cannot file for regular parole or
custody parole for the next one year after the time period of the parole expires.

Why is jail an exception

Unless there are some cogent reasons for custodial interrogation and sustained detention at a
pre-trial stage, detaining an individual and encroaching his right to liberty is considered to be
punitive and against the principles of natural justice. Further, the application of the Reformative
theory to the principles of punishment calls for a balance between two theories, namely
deterrent theory, and punitive theory, i.e., to reform an accused and to keep him away from
hardened criminals in jail which are deemed to be universities of crime. Furthermore, with a
rise in Human rights activism, the equilibrium between the liberty of an individual and the
interest of society has become the main concern. So unless there are some cogent reasons such
as chances of the accused fleeing from justice or the fear of him tampering with the evidence
or inducing the witnesses, detention of the accused is against his fundamental right to liberty
which is totally uncalled for. Therefore, the courts ensure that a person is not detained unless
the interest of justice suffers if an arrest is not made.

Module 09

Appeal and its provisions under Crpc

Introduction

The criminal justice system can have far-reaching effects on an individual’s life, most
significantly affecting their right to life and freedom. Since courts, like any other man-made
organisation, are likely to make mistakes, it follows that the judgements they make are also
subject to this risk of making errors. In order to prevent a serious miscarriage of justice, there
should be procedures in place to carefully review the rulings of subordinate courts. To account
for this, certain measures have been incorporated into the criminal procedure for appealing a
criminal court’s judgement or order. From Section 372 all the way up to Section 394 of the
Criminal Procedure Code are detailed requirements regarding appeals.

However, the opportunity to appeal is not always available. For this reason, even in
circumstances where the right of appeal has been limited by CrPC, the lawmakers integrated
the concept of a review procedure termed “revision” into the legislative process to entirely
preclude any miscarriage of justice. The higher courts’ revision powers and the method for
exercising those powers are laid forth in Sections 397 to 405. These authorities are wide-
ranging and ad hoc, which should be taken into account.

While litigants are guaranteed the opportunity to appeal in most circumstances, criminal courts
have wide latitude in deciding whether or not to grant a motion for rehearing, therefore revision
is not a guaranteed legal right. Legally, an accused person has the right to at least one appeal
in criminal proceedings but no such recourse in situations of revision. The distinction between
an appeal and a revision has been revisited numerous times in court. According to the Supreme
Court’s decision in Hari Shankar v. Rao Ghari Chowdhury (1963), “the distinction between an
appeal and a revision is a real one. Unless the statute that grants the right of appeal specifies
otherwise, a rehearing on appeal includes a rehearing on both the law and the facts. In most
cases, a higher court has the authority to review a previous ruling to ensure that the original
decision was made in accordance with the law.”

Appeal under criminal law

Although the term “appeal” is not defined in the Code of Criminal Procedure, 1973, it can be
thought of as the review of a lower court’s ruling by a higher court. It must be stressed that no
appeal can be made from any judgement or order of a criminal court except in accordance with
the legislative procedures given forth in the Code of Criminal Procedure, 1973, or any other
law that is in force. This means that even the initial appeal is time-limited by law; hence, no
“vested right” to appeal exists. The rationale behind this principle is the presumption that the
trial was handled fairly by the courts that heard the matter. In the event of an acquittal, a
conviction for a lesser offence, or insufficient compensation, however, the victim may file an
appeal of the court’s decision. Appeals in the sessions courts and the high courts are typically
governed by the same sets of rules and procedures. The high court is the highest court of appeal
in a state and enjoys more powers in matters where an appeal is permissible. Since it is the
country’s highest court of appeals, the Supreme Court has the ultimate discretion and plenary
power in all appeals. The Supreme Court’s authority is principally determined by the provisions
of the Indian Constitution and the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction), 1970. If the high court overturns an acquittal ruling and sentences the defendant
to life in prison, 10 years in jail, or death, the defendant has the right to appeal to the Supreme
Court. Article 134(1) of the Indian Constitution establishes the same law under the appellate
jurisdiction of the Supreme Court, recognising the importance of a criminal appeal being
brought to that court. In accordance with Article 134(2) of the Indian Constitution, the
legislature also passed the Supreme Court (Enlargement of Criminal Appellate Jurisdiction)
Act, 1970, which gives the Supreme Court the authority to hear appeals from the high court in
certain cases. If the trial involved multiple defendants and the court issued an order of
conviction for all of them, each defendant has the same right to appeal the decision. The right
to appeal may be waived, however, under limited circumstances. These rules can be found in
Sections 265G, 375, and 376. The Code of Criminal Procedure of 1973 prescribes that verdicts
and orders cannot be appealed except in certain situations. This demonstrates the critical status
of appeals.
A criminal defendant can file an appeal with the Supreme Court, a high court, or a sessions
court, depending on the nature of the case. According to the Supreme Court’s decision in Arun
Kumar v. State of Uttar Pradesh (1989), the Allahabad High Court was right to overturn the
Sessions Judge’s acquittal and convict the appellants if it determined that the Sessions Judge’s
position was clearly erroneous and even contributed to a miscarriage of justice. The Supreme
Court of India ruled in Satya Pal Singh v. State of Madhya Pradesh (2015) that a victim’s next
of kin has standing to appeal a conviction to a higher court under the provisions of Section 372,
provided that the deceased victim’s father meets the definition of a victim. The victim needs
the permission of the high court to initiate an appeal against a decision of acquittal, as the
Supreme Court ruled in the case of Satya Pal Singh v. State of Madhya Pradesh. These are the
cornerstones of the appeals process under CrPC:

 The right to appeal must be established by law.

 No automatic right to seek an appeal.

 No appeal only against conviction.

 Petty cases are final and cannot be appealed.

 A plea of guilt results in an automatic conviction; there is no right of appeal.

Who can appeal

A person whose trial results in a guilty verdict may file an appeal of that verdict. When an
appeal is made, it does not imply that the case is being heard again. Issues raised by the trial
transcript are used to make a decision on the appeal. The court may hear new evidence from
the appellant if the circumstances warrant it. Affidavits from witnesses detailing their prepared
statements for a new trial should be submitted to the court to demonstrate this. It is the
appellant’s burden to persuade the court that:

 claims that the jury’s judgement should be overturned because it was arbitrary or
not supported by the evidence,

 the judge made an error in interpreting the law, or

 there was a miscarriage of justice.

If an appeal is filed, the court can do just about anything with it. The court may uphold the
conviction, overturn the conviction, substitute a judgement of acquittal, or order a new trial.
Even if the court rules in the appellant’s favour on a technicality of the law, it may nonetheless
decide to throw out the appeal if it determines that there was no serious miscarriage of justice.
The Director of Public Prosecutions may also file an appeal with the Court of Appeal,
requesting that the Court of Appeal quash an acquittal and retry the case, or file an appeal
against an interlocutory judgement.

Subsequent appeals

A person who has been found guilty at trial may, with the approval of the Court of Appeal,
make a second or subsequent appeal. An individual seeking permission to appeal must
convince the court that new and persuasive evidence exists and should be taken into account.
If the court believes there was a significant miscarriage of justice, it may hear a new appeal,
overturn the conviction, and either substitute a judgement of acquittal or order a new trial.

Kinds of appeal

Section 373 CrPC – Appeal in court of session

In the event that a person has been ordered to offer security for the purpose of maintaining the
peace or for good behaviour, an appeal against the order may be filed with the Court of Session
in accordance with Section 117.

Where a person has been wronged by any order refusing to accept or reject a surety, the person
may seek redress under Section 121.

Section 374 CrPC – Appeal from convictions

 High Court orders of conviction issued while exercising original criminal

jurisdiction have the right to be appealed to the Supreme Court.

 Conviction orders issued by the Court of Session or Additional Court of Session are
appealable to the High Court.

 If the Court of Session or the Additional Court of Session imposes a sentence of

more than seven years in prison, the defendant may appeal the decision to the High
Court.
  Appeals may be taken to the Court of Session from convictions handed down by the
Metropolitan Magistrate, Judicial Magistrate I, or Judicial Magistrate II.

 The court of session hears appeals from anyone who is dissatisfied with the results
of a criminal proceeding under Sections 325 and 360 of the Criminal Procedure
Code.

Exception to Section 374

The exceptions to Section 374 of the Criminal Procedure Code are found in Sections 375 and
376 of the CrPC as given below:

1. There is no right to appeal a conviction where the defendant has made a guilty plea
and been found guilty on the basis of that plea.

2. A person who has been found guilty and sentenced by a high court to a period of
imprisonment of not more than six months or a fine of not more than one thousand
rupees, or to both such imprisonment and fine, shall not be permitted to file an
appeal against that sentence.

3. A person who has been found guilty and sentenced by a court of the session or a
metropolitan magistrate to a period of imprisonment of not more than three months
or a fine of not more than two hundred rupees, or to both such imprisonment and
fine, shall not be permitted to file an appeal against that sentence.

4. A person who has been fined by a first-class magistrate of not more than one
hundred rupees shall not be permitted to file an appeal against that sentence.

Section 377 and 378 CrPC – State appeals

State government appeals:

1. Under Section 377, to increase the severity of a punishment;

2. Under Section 378, to overturn an acquittal of an accused person

Section 377 CrPC – Appeal against sentence

The state government may appeal the sentence to the Court of Session or High Court on the
grounds that it is inadequate pursuant to this clause, which may be done through the office of
the public prosecutor.

If one disagrees with a magistrate’s sentencing decision, they have the right to file an appeal
with the court of session. If a sentence is handed down by a lower court, an appeal could be
filed with the high court.

If the inquiry is conducted by the Delhi Special Police Establishment or another central agency,
the Central Government would issue the directive to the public prosecutor.

It is expected that the accused will be given a fair hearing before any appeal or decision to
increase their sentence is issued.

Section 378 CrPC – Appeal in case of acquittal

If a magistrate issues an acquittal in a case involving a cognizable and non-bailable offence,

the district magistrate may instruct the public prosecutor to appeal the decision to the court of
session. If an acquittal is issued by a court other than the high court, the state can still ask for a
review of the decision by filing an appeal with that court.

If the inquiry was conducted by the Delhi Special Police Establishment or another government
body, the Central Government will provide instructions on how to file an appeal.

It should be mentioned that the high court’s authorisation will be sought in advance of
launching an appeal there.

In the event that the high court grants special permission to make an appeal, the complaint may
do so in the event that the case launched on the basis of the complaint is afterwards acquitted.
A government employee who has been found not guilty may file a new application within six
months after the acquittal.
An application may be filed within 60 days following the judgement of acquittal if the
complainant is not a government employee. No appeal from a judgement of acquittal shall lie
if such an appeal is dismissed.

Section 379 CrPC- Appeal against conviction by High Court in certain cases

If a person’s acquittal by the high court is overturned and he is subsequently convicted and
sentenced to death, life in prison, or a term of imprisonment of 10 years or more, the accused
may appeal to the Supreme Court.

Section 380 CrPC- Special right of appeal in certain cases

If a co-defendant has received an appealable sentence, then the other defendant has the right to
appeal his own non-appealable punishment under this provision.

Non-appealable cases

Section 375 CrPC- Certain guilty pleas are non-appealable

No appeal shall lie if the defendant enters a plea of guilty before the high court and the court
records such a plea and finds the defendant guilty.

If the defendant enters a guilty plea in a lower court, an appeal of the sentence may be made to
the high court.

There is a right to appeal a sentence based on:

1. The totality of the punishment.

2. The sentencing process was followed per the law.

Section 376 CrPC- No appeal in petty cases

Petty misdemeanours shall not be subject to appeal. The procedures for handling petty matters
vary by jurisdiction. The following are examples of minor offences:
  In the instance of the High Court, the possible penalties include either imprisonment
for up to 6 months or a fine of up to Rs 1000, or both.

 Up to three months in jail time, a Rs. 200 fine, or both if found guilty in court of
session.

 Up to 3 months in jail, or a fine of Rs. 200, whichever is greater, if prosecuted by a

metropolitan magistrate.

 There is a Rs 100 fine if you are caught breaking a law in front of a judicial
magistrate.

 Up to Rs. 200 in the instance of a Magistrate authorised under Section 260 of the
Criminal Procedure Code.

Important judgements

Dhananjay Rai v. State of Bihar (2022)

The bench consisting of Abhay S. Oka and MM Sundresh, JJ., decided that an appeal against
conviction that was filed by an accused under Sub-Section (2) of Section 374 of the Code of
Criminal Procedure, 1973, cannot be dismissed on the ground that the accused is absconding.
This decision was made in order to further the cause of criminal justice.

The accused was found guilty by the Sessions Court on September 4, 2009, and the charges
against him were brought under Sections 302 and 120B of the Indian Penal Code (IPC), as well
as Section 27(1) of the Arms Act of 1959. The accused person took their case to the High Court
in Patna, where they filed an appeal. After some time, it was determined that he had vanished.
The appeal against conviction was thrown out by a division bench of the Patna High Court on
August 25, 2015, for the sole reason that the accused had vanished without a trace, without any
consideration being given to the validity of the appeal. The High Court ruled that even though
the right to appeal is substantial, the appellant lost his right to do so the minute he misused the
legal process by evading capture. The appellant’s conduct here constitutes willful resistance to
the criminal justice system.

But the Supreme Court did not agree with the High Court’s method when the High Court
acknowledged that it was departing from the established position of law.
The Court stated that the High Court’s distress about the appellant’s boldness in evading justice
by fleeing the jurisdiction is understandable. Non-prosecution is not a valid reason to ignore
the merits of a previously granted appeal of a conviction.

As a result, the Court reversed the challenged verdict and sent the case back to the High Court
to be heard again on its merits.

As the appeal is from 2009 and challenges a conviction under Section 302 of the Indian Penal
Code, the Court has stated that it should be given the utmost attention in being resolved. The
Court ruled that “if the appeal could not be heard within a reasonable time, in that situation,
the appellant will have to be allowed the liberty to seek suspension of sentence” and asked the
High Court to consider the appeal as soon as practicable, ideally within six months.

Jogi v. the State Of Madhya Pradesh (2021)

When hearing a substantive appeal under Section 374 of the Code of Criminal Procedure of
1973, the High Court must conduct its own analysis of the evidence and draw its own
conclusions about the accused’s guilt or innocence based on its own evaluation of the evidence
in the record.

Dilip S. Dahanukar v. Kotak Mahindra Company Limited (2007)

An offender who has been convicted has the unalienable right to exercise his or her appeal
under the provisions of Section 374 of the Code. In light of Article 21‘s broad definition, the
ability to appeal a conviction that has an impact on one’s freedom is likewise a basic right.
Therefore, the right of appeal cannot be limited in any way or subjected to any conditions. The
right to appeal is guaranteed by Article 21 of the Indian Constitution and Section 374 of the
Criminal Procedure Code.

Bindeshwari Prasad Singh @ B.P v. State Of Bihar (2002)

When dealing with an appeal from an acquittal preferred under Section 374 of the Code of
Criminal Procedure, the high court has much broader jurisdiction than a revisional court
exercising jurisdiction under Section 401 of the Code of Criminal Procedure against an order
of acquittal at the instance of a private party. All arguments that can be made in favour of the
petition for revision can also be made in the appeal, but not the other way around. When the
state’s appeal against the verdict of acquittal is denied, the verdict of the lower court becomes
final. To thereafter exercise revisional jurisdiction under Section 401 of the Code of Criminal
Procedure against the order of acquittal at the instance of a private party might not be a proper
exercise of discretion in such a scenario.

Appellate court

The jurisdiction of an appellate court is laid out in detail under Section 386 of the Criminal
Procedure Code. Although the appellate court has the jurisdiction to dismiss an appeal
summarily, it will only do so if the appeal has not been dismissed under Section 384. In
accordance with Section 386 of the Criminal Procedure Code, the Appellate Court may dismiss
the appeal if it finds that there is insufficient cause for interfering with the order under appeal.

If the appellate court hasn’t already ruled out the appeal for the reasons stated, it might:

1. Reverse the lower court’s acquittal decision and remand the matter for further
investigation, a new trial, or commitment, as appropriate; or find the defendant
guilty and impose the appropriate punishment;

2. Reverse the finding and sentence and acquit or discharge the accused, or order him
to be retried by a Court of competent jurisdiction subordinate to such Appellate
Court, or commit him for trial, or alter the finding, maintaining the sentence, or with
or without altering the finding, alter the nature or the extent, or the nature and extent
of the sentence, but not so as to enhance the same in an appeal from a conviction;

3. Reverse the finding and sentence and acquit or discharge the accused or order him
to be retried by a Court competent to try the offence; Alter the finding maintaining
the sentence; Alter the nature, the extent, or both, of the sentence, so as to enhance
or reduce the same; With or without altering the finding, alter the nature, the extent,
or both;

4. Modification or reversal of any prior order pending appeal;

 5. Make any adjustment or order that is necessary or appropriate to the punishment;
Provided, however, that the sentence shall not be increased unless the accused has
been given a chance to show cause against such increase.
Further, the Appellate Court shall not impose on the defendant a greater penalty than that
imposed by the court that issued the order or sentence that is the subject of the appeal.
Regarding an appeal that has arisen from an order of conviction, Section 386(b) provides the
Appellate Court with extensive powers, and the Appellate Court has the authority to even acquit
a person who has been found guilty of an offence by the trial court.

According to Section 386 of the Criminal Procedure Code, a person who has been convicted
has the right to appeal their case, and the Appellate Court has the authority to, while the appeal
is pending, order that the execution of the sentence or order that is being appealed against be
suspended, and also, if the person is in confinement, that they be released on bail or on their
own bond.

Conclusion

An appeal does not result in a new trial. In order to evaluate whether there are sufficient grounds
to grant the appeal, the appellate court instead reviews the record of the lower court’s
proceedings. A complete transcript of the trial as well as all pre and post-trial motions are
included in the record. Appellate courts don’t just look at the evidence presented in the trial;
they also read the briefs the parties submit. Appellate briefs provide context for the arguments
made in an appeal and lay out the relevant legal issues at stake. Since it was created by
legislation, the appellate court’s authority and jurisdiction must be defined within the confines
of the law. At the same time, an appeals court is a “court of error,” the purpose of which is to
revise the lower court’s ruling if it was incorrect, and its jurisdiction should be identical to that
of the lower court. It should not and cannot perform an action that the lower court lacked
jurisdiction to execute. Similarly, in circumstances where the trial for conviction was not held
in the High Court, the State Government has the authority to direct the Public Prosecutor to file
an appeal against the sentence on the grounds of inadequacy with either the session’s court or
the High Court. Neither the victims nor the complainants nor anybody else has been afforded
the opportunity to file an appeal challenging their sentences on the grounds that they are
inadequate. In addition, the court must provide the defendant with a fair opportunity to present
arguments against any proposed sentence enhancement. The defendant has the right to show
cause in order to be exonerated or have his sentence reduced.

Legal aid

Legal aid plays a crucial role in enabling access to justice for the poor and needy. Legal aid
refers to providing free legal services to individuals who cannot afford the services of a lawyer
for their legal proceedings in courts or before judicial authorities. It aims to ensure that
everyone has access to justice regardless of their financial situation.

The preamble of the Indian Constitution emphasises securing justice for the people of India,
both in socio-economic and political aspects. Justice P.N. Bhagwati has aptly described legal
aid as a system that ensures easy access to the administration of justice for those who need it
to enforce their legal rights.

Contents

1. What is the Right to Free Legal Aid?

2. Development of Right to Free Legal Aid

2.1. Rights of the Accused and Legal Aid

2.2. Role of Police and Judiciary

2.3. Consequences of Failure to Provide Legal Aid

3. Constitutional Provisions for Free Legal Aid

4. What is Article 39-A of the Indian Constitution?

5. Institutions Providing Free Legal Services

6. Eligibility Criteria for Free Legal Aid

7. Scope of Free Legal Aid

8. Instances When Legal Services Can Be Rejected or Withdrawn

9. Cases Excluded from Legal Aid

10. Withdrawal of Legal Services

11. Issues and Challenges in Free Legal Aid

11.1. Lack of Public Legal Education and Awareness

11.2. Lack of Support from Advocates and Lawyers

11.3. Limited Powers of Lok Adalats

11.4. Underutilisation of Para-Legal Volunteers

12. Conclusion

What is the Right to Free Legal Aid?

The Right to Free Legal Aid refers to the entitlement of individuals who cannot afford legal
services to receive legal assistance and representation at no cost. It is a fundamental right aimed
at ensuring equal access to justice for all, regardless of economic or social disparities. The right
to free legal aid is recognised and protected by various legal frameworks and constitutional
provisions in many countries.

The essence of the right to free legal aid lies in the principle that justice should not be restricted
to those who can afford legal representation. It acknowledges that individuals facing legal
proceedings, particularly those from marginalised and disadvantaged backgrounds, may be
unable to navigate the legal system effectively without professional assistance.

Under the right to free legal aid, eligible individuals are provided with legal services, including
advice, consultation and representation, either fully funded by the government or through legal
aid organisations. These services extend to various stages of legal proceedings, such as criminal
trials, civil disputes and administrative hearings.

Development of Right to Free Legal Aid

In the case of Hussainara Khatoon vs. State of Bihar, it was established that if an accused
person cannot afford legal services, they have the right to free legal aid provided by the state.
This ensures that everyone can access legal representation regardless of their financial
situation.
Rights of the Accused and Legal Aid
Under Section 304 of the Code of Criminal Procedure, if an accused person does not have
sufficient means to hire a lawyer, the court must appoint one for their defence at the expense
of the state. This ensures that the accused receives proper legal representation.

The obligation to provide legal aid arises from the moment the accused is presented before the
Magistrate for the first time and continues throughout the proceedings, as established in the
case of Khatri II vs. State of Bihar.

In cases where a person is entitled to appeal against their sentence, they have the right to request
legal counsel to prepare and present the appeal, as per Madav Hayavadanrao Hoskot vs.
State of Maharashtra.

Role of Police and Judiciary

The police are responsible for immediately informing the nearest Legal Aid Committee when
a person is arrested, as stated in the case of Sheela Barse vs. State of Maharashtra. This ensures
that the arrested individual’s right to legal aid is protected from the outset.

Furthermore, Magistrates and session judges are required to inform any accused person who
appears before them without legal representation due to poverty or indigence about their
entitlement to free legal services provided by the State.

Consequences of Failure to Provide Legal Aid

Failure to provide legal aid to an indigent accused, unless it was intentionally refused, can
invalidate the trial and may result in overturning a conviction and sentence, as seen in the case
of Suk Das vs. Union Territory of Arunachal Pradesh.

In summary, the right to legal aid is essential to ensuring justice and equality in the legal
system. The State has a duty to provide free legal services to those who cannot afford them,
starting from the initial stages of the legal process and continuing throughout the proceedings.

Constitutional Provisions for Free Legal Aid

The Constitution of India encourages both the people and the government to achieve full and
equal justice for all. It is evident that receiving fair treatment from the courts is crucial in
pursuing justice.
 The delivery of justice is the fundamental purpose of the judicial system. Therefore, ensuring
equal and unbiased treatment in court becomes a cornerstone of the society envisioned by the
directive principles of state policy.

Articles 14 and Article 21, which are part of the Fundamental Rights, impose an obligation on
the State to ensure equality before the law and a legal system that promotes justice based on
equal opportunity for all individuals.

In the landmark case of Hussainara Khatoon v. State of Bihar, the Supreme Court
emphasised that free and effective legal aid is integral to the Right to Life under Article 21 of
the Constitution.

Justice P.N. Bhagwati, in his observations, stated that a procedure that denies legal services to
an accused person who is too impoverished to afford a lawyer and, as a result, forces them to
go through the trial without legal assistance cannot be considered reasonable, fair or just.

What is Article 39-A of the Indian Constitution?

The right to legal representation is closely tied to the right to a fair trial, which is recognised as
one of the fundamental human rights. In line with this principle, the Constitution (Forty-second
Amendment) Act, 1976 was introduced, which included the insertion of Article 39-A.

Article 39-A falls under the “Directive Principles of State Policy” and directs the State to enact
suitable legislation and implement schemes for the provision of free legal aid. This amendment
was introduced to ensure that no citizen is denied the opportunity to seek justice due to
economic or other disabilities.

The inclusion of Article 39-A in the Constitution emphasises the importance of providing free
legal aid to those who are unable to afford it. By introducing appropriate legislation and
schemes, the State aims to remove barriers and ensure that everyone has equal access to justice.

Institutions Providing Free Legal Services

Several institutions at different levels are responsible for providing free legal services:

 National Level: National Legal Services Authority (NALSA) – Established under the Legal
Services Authorities Act, 1987, the Chief Justice of India serves as its Patron-in-Chief.
 State Level: State Legal Services Authority – Headed by the Chief Justice of the State High
Court, who acts as its Patron-in-Chief.
 District Level: District Legal Services Authority – The District Judge of the District serves
as its ex-officio Chairman.
 Taluka/Sub-Division Level: Taluka/Sub-Divisional Legal Services Committee – Led by a
senior Civil Judge.
 High Court: High Court Legal Services Committee.
 Supreme Court: Supreme Court Legal Services Committee.

Eligibility Criteria for Free Legal Aid

Free legal aid is primarily intended for marginalised sections of society who cannot afford
access to justice. Section 12 of the Legal Services Authorities Act, 1987 outlines the eligibility
criteria, which include:

 Members of Scheduled Castes or Scheduled Tribes.

 Victims of human trafficking or beggars.
 Women or children.
 Persons with disabilities as defined in the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995.
 Individuals in underserved circumstances such as victims of mass disasters, ethnic violence,
caste atrocities, floods, droughts, earthquakes or industrial disasters.
 Industrial workers.
 Individuals in custody, including those in protective homes.
 In cases before the Supreme Court, individuals with an annual income of less than Rs 5 lakh
and for cases before other courts, individuals meeting the income criteria prescribed by the
State Government.

Scope of Free Legal Aid

Legal services provided under free legal aid cover a range of assistance. According to Section
2(c) of the Legal Services Authorities Act, 1987, “legal services” include services related to
any case or legal proceeding before a court, authority or tribunal, as well as advice on legal
matters.
 Some examples of the legal assistance covered under free legal aid are:

 Representation by an advocate in legal proceedings.

 Payment of process fees, witness expenses and other charges associated with legal proceedings,
in appropriate cases.
 Preparation of pleadings, appeals, paper books, including document translation and printing.
 Drafting legal documents and special leave petitions.
 Providing advice on legal matters.
 These services aim to ensure that individuals who are eligible for free legal aid receive the
necessary support and guidance to navigate the legal process

Instances When Legal Services Can Be Rejected or Withdrawn

Legal services can be rejected or withdrawn in certain circumstances. Here are the situations
in which it may occur:

 Adequate Means: If the applicant has sufficient means to access justice and can afford legal
services independently.
 Ineligibility: When the applicant does not meet the eligibility criteria for free legal aid.
 Lack of Merit: If the application or case lacks merits, meaning there is no reasonable legal
action required.

Cases Excluded from Legal Aid

 Defamation, Malicious Prosecution, Contempt of Court, Perjury: Legal aid is generally

not available for cases related to these offences.
 Election Proceedings: Cases related to election matters are usually not covered under legal
aid.
 Fine Imposed up to Rs. 50: Cases where the imposed fine does not exceed Rs. 50 may not be
eligible for legal aid.
 Economic Offenses and Social Laws: Cases falling under economic offences or offences
against social laws may not be eligible for legal aid.
 Lack of Direct Concern: If the person seeking legal aid is not directly involved in the
proceedings, their interests will not be affected.

Withdrawal of Legal Services

 The provision of legal services may be withdrawn in the following circumstances:

 Misrepresentation or Fraud: If the legal aid is obtained through misrepresentation or fraud.

 Material Change in Circumstances: If there is a significant change in the circumstances of
the aided person that renders them ineligible for continued legal aid.
 Misconduct, Misbehavior or Negligence: When the aided person engages in misconduct,
misbehaviour or shows negligence in their actions.
 Lack of Cooperation: If the aided person fails to cooperate with the assigned advocate or does
not actively participate in legal proceedings.
 Appointment of Another Legal Practitioner: If the aided person chooses to appoint another
legal practitioner instead of the one assigned through the legal services committee.
 Death of Aided Person (except in civil cases): Legal services are generally terminated upon
the death of the aided person, except in civil cases where legal representation may continue on
behalf of their estate.
 Misuse of Legal Process: If the legal proceedings amount to abuse or misuse of the process
of law or the legal services provided.

Issues and Challenges in Free Legal Aid

Despite the existence of statutory provisions, committees and authorities for providing legal
aid, significant challenges still hinder its effective implementation. Some of these challenges
include:

Lack of Public Legal Education and Awareness

One major obstacle is the poor and illiterate population’s lack of legal education and awareness.
Many people are unaware of their basic rights and the legal aid services available to them. This
lack of awareness hampers the goal of the legal aid movement, as people are unfamiliar with
initiatives like Lok Adalats and Legal Aid.

Lack of Support from Advocates and Lawyers

Many advocates and lawyers prioritise receiving proper fees for their services; only a few
actively participate in social service programs like legal aid. The scarcity of dedicated legal
professionals willing to contribute their services becomes a barrier to delivering quality legal
representation to those in need.
Limited Powers of Lok Adalats
Lok Adalats, though designed to provide alternative dispute resolution, have limited powers
compared to civil courts. They often face challenges related to procedural limitations and the
inability to compel parties to appear for proceedings. Non-appearance of one party can lead to
delays in case disposal.

Underutilisation of Para-Legal Volunteers

Para-legal volunteers play a crucial role in promoting legal aid camps and schemes and
reaching out to marginalised sections of society. However, there is a lack of proper training,
monitoring and verification of these volunteers. Additionally, the number of available para-
legal volunteers is insufficient to cater to the entire population’s needs.

Conclusion

The right to free legal aid is closely linked to the broader principles of equality, fairness and
the right to a fair trial. By providing legal assistance to those who cannot afford it, this right
helps uphold the principle that justice should be accessible to all, irrespective of their financial
resources. It also helps mitigate the potential power imbalances in the legal system.

Overall, the right to free legal aid recognises the importance of ensuring equal access to justice,
promoting a fair and inclusive legal system and safeguarding individuals’ fundamental rights
and interests.

Transfer of cases
The mandatory procedure for pursuing a case is outlined in the Code of Criminal Procedure,
1973. Chapter XXXI of this Code specifically covers the transfer of cases under CrPC (Section
406 to 411). The primary objective of introducing these provisions is to ensure justice is
delivered to people, and to facilitate this, the right to appeal is also provided.

The growing backlog of pending cases and appeals has led to delayed justice and created
dissatisfaction within the judicial system. Certain provisions have been implemented to transfer
criminal cases from one court to another to tackle this issue.
It’s important to note that the right to appeal in the Supreme Court is only available in
exceptional circumstances, as the original court of criminal appeal is typically the High Court,
according to the Code of Criminal Procedure.

Contents

1. Meaning of Transfer of Cases under CrPC

2. Types of Transfer of Cases under the Criminal Procedure Code, 1973
3. Provisions for Transfer of Cases under CrPC
4. Section 406 – Power of Supreme Court to Transfer Cases and Appeals
5. Section 407 – Power of High Court to Transfer Cases and Appeals
6. Section 408 – Power of Sessions Judge to Transfer Cases and Appeals
7. Section 409 – Withdrawal of Cases and Appeals by Sessions Judge
8. Section 410 – Withdrawal of Cases from Judicial Magistrates
9. Section 411 – Withdrawal of Cases from Executive Magistrates
10. Section 412 – Reasons to be recorded
11. Conclusion

Meaning of Transfer of Cases under CrPC

Transfer of cases under the Code of Criminal Procedure (CrPC) refers to moving a criminal
case or appeal from one court to another within the same jurisdiction or to a different
jurisdiction. The CrPC contains provisions that empower higher judicial authorities to transfer
cases and appeals under specific circumstances to ensure a fair trial, uphold the principles of
justice and promote the convenience of the parties involved in the litigation.

The nature of the trial or the relief granted to the parties involved remains unchanged when a
case is transferred. The power to transfer of cases in CrPC is granted to various authorities,
including the Supreme Court, High Courts, Sessions Judges, Chief Judicial Magistrates, and
Executive Magistrates, depending on the level and nature of the case. The reasons for such
transfers could be related to jurisdictional issues or concerns about the court’s composition.

The principle of delivering justice fairly and transparently is always upheld throughout the
judicial system. The judiciary is the cornerstone of ensuring justice and has consistently
maintained a strict stance on the impartiality of trial procedures. Both the civil and criminal
codes of procedure offer valid justifications for transferring cases between courts.
 Section 406 to 411 of the Criminal Procedure Code of 1973 deals with the transfer of cases.

Types of Transfer of Cases under the Criminal Procedure Code, 1973

Under the Code of Criminal Procedure, there are six types of transfers of cases:

 The Supreme Court can transfer cases from one state to another state.
 A state’s High Court can transfer cases from one court to another with equal or superior
jurisdiction or even transfer a case to itself.
 The Sessions Judge can transfer cases from one court in their Sessions Division to another.
 The Sessions Judge can withdraw cases from Additional Sessions Judges, Assistant Sessions
Judges, or the Chief Judicial Magistrate.
 The Chief Judicial Magistrate can withdraw cases from any magistrate under their command.
 Executive magistrates, including district and sub-district magistrates, can dismiss cases.

Provisions for Transfer of Cases under CrPC

Chapter XXXI deals with the transfer of criminal cases under CrPC. This chapter comprises
Sections 406 to 412, which outline the rules and procedures for transferring criminal
proceedings. The rules include:

Section 406 – Power of Supreme Court to Transfer Cases and Appeals

Section 406 of the Criminal Procedure Code grants the Supreme Court the discretionary power
to transfer cases and appeals. This broad discretionary power allows the Supreme Court to
transfer any case or appeal to the High Court of any other State in the country to uphold the
principles of justice and natural justice.

An application seeking the transfer of a case or appeal pending in a High Court can be filed
with the Supreme Court by:

 1. Individuals who fear injustice in court proceedings.

 2. Individuals who believe they won’t receive fair justice in the court where the case is currently
being heard.
 3. The Attorney General or Advocate General of India.
The Supreme Court’s power to transfer cases and appeals under Section 406 is purely
discretionary, and the applicant is not required to conclusively prove their reasons for seeking
the transfer. The applicant must submit an affidavit or an affirmative motion in the prescribed
format under Section 406 unless the applicant is the country’s Advocate General or Attorney
General.

The Supreme Court’s authority to transfer cases and appeals also extends to cases pending
before any subordinate court in the country. However, during the hearing, the Supreme Court
ensures that it upholds the principles of fair and natural justice while deciding on the transfer
of criminal cases in CrPC. The applicant is always entitled to approach the court with
appropriate jurisdiction if they have reasonable grounds to believe that certain factors might
impede their right to a fair trial.

This provision allows for the transfer of cases and appeals from the Supreme Court to another
High Court or from one High Court to another. The transfer of cases under CrPC can occur if
it is deemed in the interest of justice. The Attorney General of India can make applications for
such transfers, the Advocate General of the involved state, or any other party involved or
interested in the case, which an affidavit or confirmation must support. Anyone found to have
filed a fraudulent application under Section 2000 may be required to pay compensation to the
opposing party.

In the case Suman Gambhir v. State of Rajasthan & Ors., the complainants and accused are
based in Delhi, the civil suit between them is pending in Delhi, and the state has no objection
to transferring the case from Rajasthan to Delhi.

In Fajlor Rahman alias Mohamod Fajloo alias Raju & Ors. v. State of Punjab & Anr., the
petitioners requested the transfer of the criminal case against them to the Chief Judicial
Magistrate’s Court in Jalandhar Filler, Punjab, Barpeta, Assam, under Sections 363-A, 366 and
120-B. The grounds for the transfer of a criminal case under CrPC were potential life-
threatening situations, as petitioners 1 and 2 had run away to marry. The Supreme Court,
considering the interest of justice and the client, granted the transfer of the case.

In Vishwanath Gupta & Anr. v. State of Uttaranchal & Anr., transfer Petitions of 2004
(Crl.) No. 254-55, along with No. 89 of 2005, the Supreme Court held that the petitioners
sought the transfer of case in CrPC based on an inability to engage the defendant’s lawyers.
 The concerned court did not permit the District Collector’s Association when an affidavit was
submitted that the petitioner had been provided with legal counsel.

In Sukhdev Singh Sodhi vs. The Chief Justice and Judges of The PEPSU High Court, the
court clarified that the power to transfer cases to the Supreme Court does not extend to the
transfer of any pending contempt proceedings in the High Court.

The authority to transfer cases and appeals is not only discretionary but also limited because
Section 406 does not give the Supreme Court the power to transfer pending investigations from
one police station to another solely to file an FIR. Suppose the Supreme Court considers the
filed petition trivial and lacks substantive rights. In that case, the party submitting the petition
may be ordered to pay compensation in excess of one thousand rupees to the opposing party.

In the case of Kaushalya Devi v. Mool Raj, the magistrate dealing with the case filed an
affidavit opposing the transfer application, stating that there was no doubt about the transfer
being in the interest of justice. This is because, in such cases, the requirements for a fair and
impartial trial are already at risk, as indicated by the personal involvement of the judge.

Section 407 – Power of High Court to Transfer Cases and Appeals

Section 407 of the Criminal Procedure Code confers the power on High Courts to transfer cases
and appeals. The circumstances under which the High Court may order the transfer of a case
or appeal are as follows:

 When the High Court is satisfied that the right to a fair and impartial hearing guaranteed under
Article 21 of the Constitution of India cannot be ensured if subordinate courts try the case.
 When there are extraordinary difficulties related to the questions involved in the case pending
before the court.
 When the transfer of the appeal or case is necessary due to any provision under the Criminal
Procedure Code.
 When the transfer order is for the general convenience of the parties or witnesses involved in
the lawsuit.
The High Court can issue the following orders once it is satisfied with the above grounds:
 Directing the prosecution to be made in any court subordinate to or subordinated to, it under
sections 177 and 185 of the Code, but no trial shall take place except in a court having
jurisdiction over the case.
 Transferring a particular case or appeal pending before any criminal court to another criminal
court having jurisdiction over the High Court.
 Placing a particular case before the Sessions Court for trial.
 Transferring a particular case or appeal to itself (the High Court) for adjudication.
The authority to exercise the power of transfer by the High Court falls under the following
instances:

 When the lower court submits a report requesting the transfer of the appeal or case.
 When an interested party applies before the High Court seeking the transfer of a case or appeal.
 The High Court may exercise its discretion to transfer the case or appeal if it is satisfied that it
is in the interest of justice.
 However, while transferring the case, the High Court should consider that no application for
transferring a case from one criminal court to another shall be entertained if it is made to the
Sessions Court of another Sessions Division and has already been rejected.
When the High Court exercises its power to transfer cases and appeals, it does so under the
following circumstances:

 When it believes that a fair, just, and impartial trial cannot be conducted in the current court.
 When the case involves questions of unusual difficulty.
 When specific provisions of the Criminal Procedure Code mandate the transfer.
 When it is necessary for the convenience of the parties and witnesses.
 When it serves the ends of justice.
However, in the case of Baljit Singh & Anr. v. State of Jammu and Kashmir & Ors., the
Supreme Court rejected the plea to transfer criminal cases from Jammu to Srinagar, as most of
the witnesses were from Srinagar and the court found no need for the transfer since all the
witnesses from Jammu were already examined.

A case or appeal can be transferred under this section:

 From one Criminal Court to another Criminal Court subordinate to the High Court or within
its jurisdiction.
 To a Sessions Court for trial.
 The High Court itself may try the case.
In the case of Pal Singh & Anr. v. Central Bureau of Investigation & Ors., the Supreme
Court stated that a criminal case or appeal may be transferred from one district court to another
within the same jurisdiction. There is no provision for inter-state transfer of cases in CrPC.
Additionally, when a case is in its final stages of trial, and most witnesses have already been
examined, a transfer may not be appropriate.

Transfer applications can be made by affidavits or confirmation:

 By the report of the lower court.

 By an interested party.
 The High Court may also initiate the transfer on its own.
In the case of Nirmal Singh v. the State of Haryana, the Supreme Court set aside the order
of the Punjab and Haryana High Court, transferring the criminal case to Chandigarh based on
the Sessions Judge of Ambala’s decision. The reasons for the transfer were not given, and many
accused argued that engaging legal counsel in Chandigarh would incur additional costs.

If a case is to be moved from one criminal court to another within the same Sessions division,
the transfer application can be filed in the High Court only if the Sessions Judge has already
rejected it.

The High Court oversees the proceedings to ensure a smooth case transfer or appeal transfer.

Section 408 – Power of Sessions Judge to Transfer Cases and Appeals

Section 408 of the Criminal Procedure Code empowers the Sessions Judge to transfer cases
and appeals within their Sessions Division if deemed appropriate in the interest of justice.

Subsection 1 of Section 408 states that the Sessions Judge can transfer cases under CrPC from
one criminal court to another criminal court within the jurisdiction of their Sessions Division
to serve the ends of justice.

Subsection 2 of Section 408 provides instances where the Sessions Judge can transfer cases
under CrPC. This includes cases where a report is filed by the lower court requesting the
transfer and cases where an interested party or the court files an application for transfer at its
own discretion.
 The provisions of subsection (3), (4), (5), (6), (7), and (9) of Section 407 also apply to the
Sessions Judge when making any order related to the authority while exercising the provisions
referred to under subsection 1 of Section 407. These provisions apply to the Sessions Judge in
the same manner as they apply to the High Court.

The Sessions Judge may exercise this power:

 1. At their discretion.
 2. Based on a report filed by the lower court.
 3. In response to an application made by a party.
Some provisions of Section 407 also apply to orders under Section 408. For instance:

 1. If the accused files a transfer petition, the High Court or the Sessions Judge may order the
accused to execute a bond with or without sureties. The accused must also provide written
proof of such an application to the Public Prosecutor. No order shall be made on the merits of
the application until 24 hours have elapsed between the filing of the notice and the application
hearing.
 2. If a person is found to be filing fraudulent transfer applications, they may be ordered to pay
compensation up to Rs. 1000 by the High Court or Rs. 250 by the Sessions Judge to any party
who opposed the application.
Section 407 or 408 shall not affect the Government Orders under Section 197.

Section 409 – Withdrawal of Cases and Appeals by Sessions Judge

Under the Criminal Procedure Code, the Sessions Judge can withdraw or transfer a case or
appeal from any Assistant Sessions Judge or Chief Judicial Magistrate under their authority.
However, in the case of an Additional Sessions Judge, this can only be done if the trial has not
commenced. The Sessions Judge may choose to try the case or appeal in their court or transfer
it to another court as per the provisions of the Code.

In the case of Subrata Pal v. Ratna Gope & Anr., the Agartala Bench of Gauhati High Court
stated that if a case or appeal is withdrawn from the Court of an Additional Sessions Judge, the
Sessions Judge must report to the High Court when the trial or proceedings have commenced.
The report should include the reasons for such withdrawal under Section 407(2) of the Criminal
Procedure Code.
Section 410 – Withdrawal of Cases from Judicial Magistrates

Under the Criminal Procedure Code, the Chief Judicial Magistrate has the power to withdraw
or recall any pending case before any Magistrate under their authority. The Chief Judicial
Magistrate can then refer the case to another Magistrate who is competent to try and hear the
case.

Similarly, the Judicial Magistrate has the authority to withdraw and take cognizance of any
pending case before any other Magistrate under Section 192(2) of the CrPC, 1973.

In the case of Mehfoos Khan & Anr. v. R. J. Parakh & Anr., the Bombay High Court
clarified that the power of a Judicial Magistrate under Section 410 is not an administrative
order but a judicial order. The use of the words “withdrawal” or “recall” is akin to the term
“transfer.” Since the state is the leading party in all criminal cases, it may apply to transfer the
criminal case if there are compelling reasons.

Section 411 – Withdrawal of Cases from Executive Magistrates

Sections 409 and 410, Section 411 of the Criminal Procedure Code empowers the Executive
Magistrates to withdraw or recall any pending case before a Subordinate Magistrate. The
Executive Magistrate can then either dispose of the proceedings in their court or transfer the
case to another Subordinate Magistrate competent to deal with it. This provision gives the
Executive Magistrates the flexibility to handle cases in the most appropriate manner based on
the circumstances and requirements of the situation.

Section 412 – Reasons to be recorded

Section 412 of the Criminal Procedure Code stipulates that if any transfer order is made under
Section 408, Section 409, Section 410, or Section 411, the reasons for such transfer must be
recorded in writing. This requirement ensures that transfer orders are not arbitrarily issued
based on fair, just, and compelling reasons.

Conclusion

The transfer of criminal cases under CrPC is a crucial mechanism designed to uphold the
principles of justice and ensure a fair and impartial trial. Various provisions within the CrPC
empower higher judicial authorities to transfer cases and appeals when compelling reasons
exist. The process aims to address issues such as jurisdictional conflicts, local biases, the
convenience of parties and witnesses, and the complexity of the case.

The Supreme Court, High Courts, Sessions Judges, Chief Judicial Magistrates, and Executive
Magistrates possess the authority can transfers cases under CrPC. The transfer of criminal cases
must be based on specific circumstances and recorded. By recording the reasons for the
transfer, transparency is maintained, and the transfer is executed in a just and fair manner.

Ultimately, the transfer of cases under CrPC seeks to streamline the judicial process and
provide a suitable forum for the resolution of disputes, ensuring that justice is upheld for all
parties involved.