CODE OF CRIMINAL PROCEDURE – II

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Ans.1) Under 161 the CrPC, an Investigating Officer is empowered to examine orally any person
supposed to be acquainted with the facts and circumstances of a case under investigation. The
police officer may reduce into writing any such statement made to him in the course of an
examination under section 161 of the CrPC Under section 162 of the CrPC, no statement made by
any person to a police officer in the course of investigation, shall, if reduced to writing, be signed
by the person making it. Under section 145 of the Evidence Act, if the maker of a statement is
sought to be contradicted his attention has to be drawn to his previous statement.
In State of U.P. v. M. K. Anthony, AIR 1985 SC 48. Hon'ble Supreme Court held that the fact
that Investigating Officer obtains signature of the witness on his statement does not render his
evidence inadmissible. It was further held that it merely puts the court on caution and may
necessitate indepth scrutiny of the evidence, but the evidence on this account cannot be rejected
outrightly. Confrontation of previous statement is done as provided under section 145, Evidence
Act and it makes no distinction if the statement is signed or not signed. Mere signing of statement
under section 161 of the CrPC, therefore, will not take it out of the provision of section 145,
Evidence Act, and such a statement can be confronted and the witness may even offer his
explanation.

Ans.2) section 9 of the Code reads as :

"Summons to produce document or other thing (1) Whenever any Court or any officer in charge
of a police station considers that the production of any document or other thing is necessary or
desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code
by or before such Court or officer, such Court may issue a summons, or such officer a written
order, to the person in whose possession or power such document or thing is believed to be,
requiring him to attend and produce it, or to produce it, at the time and place stated in the
summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be
deemed to have complied with the requisition if he causes such document or thing to be produced
instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers'
Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody
of the postal or telegraph authority.
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 In Om Parkash Sharma v. Central Bureau of Investigation, Delhi, AIR 2000.
The language of section 91 would, no doubt, indicate the width of the powers to be unlimited but
the in-built limitation inherent therein takes its colour and shape from the stage or point of time of
its exercise, commensurately with the nature of proceedings as also the compulsions of necessity
and desirability, to fulfil the task or achieve the object.
It is trite law that the standard of proof normally adhered to at the final stage is not to be insisted
upon at the stage where the consideration is to be confined to find out a prima facie case and
decide whether it is necessary to proceed to the next stage of framing the charges and making the
accused to stand trial for the same.
This Court has already cautioned against undertaking a roving enquiry into the pros and cons of
the case by weighing the evidence or collecting materials, as if during the course or after trial vide
Union of India v. Prafulla Kumar Samal, (1979).

Ans.3) The sine que non for the applicability of this section is that the offence charged be it one of
commission or omission, must be one which has been committed by the public servant either in
his official capacity or under colour of the office held by him. While the question whether an
offence was committed in the course of official duty or under colour of office, cannot be
answered hypothetically, and depends on the facts of each case.
In Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220 it was observed: "It is the quality of
the Act that is important and if it falls within the scope and range of his official duties, the
protection contemplated by section 197 of the Criminal Procedure Code will be attracted.
In Rezwan Ahmed Javed Shaikh v. Jammal Patel, AIR 2001 SC 2198 it was observed that the
real test to be applied to attract the applicability of section 197(3) is whether the act which is done
by a public officer and is alleged to constitute an offence was done by the public officer whilst
acting in his official capacity though what he did was neither his duty nor his right to do as such
public officer. The act complained of may be in exercise of the duty or in the absence of such duty
or in dereliction of the duty, if the act complained of is done while acting as a public officer and
in the course of the same transaction in which the official duty was performed or purports to be
performed, the public officer would be protected.
Apply the above discussed prepositions, committing rape punishable under section 376 of the or
Criminal misappropriation or Criminal breach trust cannot in any way be connected with official
duty, therefore sanction under section 197 of Cr. P.C. is not required.

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Ans.4) When search warrant may be issued.-Section 93 of CrPC lays down the conditions under which
search warrant may be issued. These warrants are resorted to only for very urgent reason. Search
warrants are issued by a Court:-
Where any Court has reason to believe that a person to whom a summon or order under Section
91 or a requisition under Section 92 (1), has been or might be addressed, will not or would not
produce the document or thing as required by such summons or requisition; or
Where such document or thing is not known to the Court to be in the possession of any person; or
Where the Court considers that the purposes of any enquiry, trial or other proceeding under the
CrPC will be served by general search or inspection.
Only the District Magistrate or the Chief Judicial Magistrate may grant a warrant to search for a
document, parcel or things in the custody of the Postal or Telegraph authority.
Supreme Court has, in M.P. Sharma v. State, A.I.R. 1954, held that search by itself is not a
restriction of the right to hold and enjoy property.
In S.M. Sachdeva v. State, 1991, It was held that an illegal order of search and seizure shall
vitiate the seizure of articles.
The Process of search is not considered unconstitutional under Article 20(3) of Constitution of
India.
According to Section 94, Cr.P.C.. a District Magistrate, Sub- Divisional Magistrate or a
Magistrate of the first class may by issue of warrant authorise any police officer above the rank of
a constable to take certain action. A warrant under this section may be issued when upon
information and after such inquiry as he thinks necessary and has reason to believe that:-
(i) any place is used for the deposit or sale of stolen property; or
(ii) any place is used for the deposit, sale or production of any objectionable article to which this
section applies: or
(iii) any such objectionable article is deposited in any place.
A warrant may be issued authorising any police officer as aforesaid:-
(a) to enter with such assistance as may be required, such place.
(b) to search the same in the manner prescribed in the warrant.
(c) to take possession of any property or article therein found which he reasonably suspects to be
stolen property or objectionable article.
(d) to convey such property or article before a Magistrate, or to guard the same on the spot until
the offence is taken before a Magistrate, or otherwise to dispose of it in some place of safety.

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 (e) to take into custody and carry before a Magistrate every person found in such place who
appears to have been privy to the deposit, sale or production of any such property or article
knowing or having reasonable cause to suspect it to be stolen property or as the case may be,
objectionable article.
Gangadharan v. Kochappi Chellappan, 1985 Cr.L.J. 1517 (Ker.), it was held that before
issuing a search warrant under Section 94, the Magistrate must satisfy that there is some
allegation or information which is sufficient to draw an inference that a particular place is used for
deposit of the stolen property or forging the document or manufacturing of counterfeit coins, false
seals etc.

Ans.5) Sections 125 to 128 of Cr.P.C. provide for maintenance of wife, children, parents etc. The object
of provision for maintenance is to prevent starvation in the society.
According to the provisions of Section 125, Cr.P.C.-
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or no unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter who has attained majority,
where such child is, by reason of any physical or mental abnormality or injury unable to maintain
itself, or
(d) his father or mother, unable to maintain himself or herself.
A Magistrate of the first class may, upon proof of such neglect or refusal order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at such
monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate
may from time to time direct:
Provided further that the Magistrate may, during the pendency of the proceeding regarding
monthly allowance for the maintenance under this sub-section, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother, and the
expenses of such proceeding which the Magistrate considers reasonable and to pay the same to
such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and
expenses of proceeding under the second proviso shall, as far as possible, be disposed of within
sixty days from the date of the service of notice of the application to such person.

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 (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding
shall be payable from the date of the order or. if so ordered, from the date of the application for
maintenance or interim maintenance and expenses of proceeding, as the case may be.
In Nanak Chand v. Chandra Kishore Aggrawal, AIR 1970, it was held that the provision of
Section 125 of Cr.P.C. is applicable to all persons belonging to any religion. It is secular in
nature.
The Mohd. Umar Khan v. Gulshan Begum, 1992, it was held that in the absence of husband's
consent to be governed by Sections 125-128, the divorced Muslim wife could not claim
maintenance under this section of Cr.P.C.
No wife shall be entitled to receive a maintenance as interim maintenance from her husband if she
is living in adultery. [Kista Pillai v. Amirthamal, AIR 1938].

Ans.6) The provision of Section 144 of Cr.P.C. is not intended to restrict the freedom of a citizen but is to
abstain persons from immediate danger of breach of peace. This section provides temporary order
in urgent cases of Nuisance and apprehended danger. It is upto the Magistrate to see whether there
is such urgency. An order under Section 144 is passed only for the purpose of maintenance of law
& order.
In Pramoda Medhi v. Gauhati Roller Flour Mills Ltd., 2003, it was held that the provision of
Section 144 of Cr.P.C. empowers Magistrate to exercise his discretion regarding maintenance of
law and order.
Madhu Limaye v. S.D. Manghyr, AIR 1971, In this case it was held that under Section 144 the
proceeding is purely administrative in nature.
Section 144 of Applicability of Cr.P.C. enumerates power to issue order in urgent cases of
nuisance or apprehended danger-
(1) In cases where, in the opinion of a District Magistrate, a Sub- divisional Magistrate or any
other Executive Magistrate specially empowered by the State Government in this behalf, there is
sufficient ground for proceeding under this section and immediate prevention or speedy remedy is
desirable, such Magistrate may, by a written order stating the material facts of the case and served
in the manner provided by section 134, direct any person to abstain from a certain act or to take
certain order with respect to certain property in his possession or under his management, if such
Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction,
annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or
a disturbance of the public tranquility, or a riot or an affray.
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 (2) An order under this section may, in cases of emergency or in cases
where the circumstances do not admit of the serving in due time of a notice upon the person
against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual or to persons residing in a
particular place or area, or to the public generally when frequenting or visiting a particular place or
area.
(4) No order under this section shall remain in force for more than two months from the making
thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to
human life, health or safety or for preventing a riot or any affray it may, by notification, direct that
an order made by a Magistrate under this section shall remain in force for such further period not
exceeding six months from the date on which the order made by the Magistrate would have, but
for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved,
rescind or alter any order made under this section by himself or any Magistrate subordinate to him
or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person
aggrieved, rescind or alter any order made by it under the proviso to sub-section
In Dr. Anindya Gopal Mitra v. State of West Bengal, 1993 Cr.L.J. 2096, it was held that
disobedience of order under Section 144 of Cr.P.C. is punishable under Section 188 of Code of
Criminal Procedure.

Ans.7) Where a Judicial Magistrate is not available, the officer-in-charge of a police-station or the police
officer making the investigation, if he is not below the rank of sub-inspector may where a Judicial
Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a
Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the
diary relating to the case, and shall, at the same time forward the accused to such Executive
Magistrate. Such Executive Magistrate, for reasons to be recorded, may authorise the detention of
the accused person in such custody as he may think fit for a term not exceeding seven days in the
aggregate. On the expiry of the period of detention so authorised, the accused person shall be
released on bail except where an order for further detention has been made by a Magistrate
competent to make such order. In making an order for further detention of the accused, the period
during which the accused person was detained in custody under the order made by the Executive

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 Magistrate shall be taken into account in computing the period specified. Before the expiry of the
period of detention order by him, the Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together with a copy of the entries in the diary relating to the
case which was transmitted to him by the officer-in-charge of the police station or the police
officer making the investigation, as the case may be. [Section 167 (2-A) and proviso].

Ans.8) The meaning of taking cognizance means taking judicial action against the accused person for the
purpose of inquiry and trial.
According to the provisions stated in Section 190 of the Code. Any Magistrate of first-class or any
Magistrate of second class specially empowered in this behalf may take cognizance of an offence-
(i) upon receiving a complaint of fact,
(ii) upon a police report,
(iii) upon information received,
from any person other than a police officer or upon his knowledge that such offence has been
committed. The Chief Judicial Magistrate may empower any Magistrate of the second class to take
cognizance under sub- section (1) of such offence as are within his competence to inquire into or
try.
Anil Saran v. State of Bihar, (1995), it was held that taking cognizance includes intention of
initiating a judicial proceeding against an offence or taking steps to see whether there is any basis
for initiating judicial proceeding.
Tula Ram v. Kishore Singh (1977), it was held that taking cognizance does not require any
formal action or indeed action of any kind but as soon as a Magistrate applies his judicial mind to
suspect commission of an offence he is said to have taken cognizance of that offence.
Ganga Ram v. State of U.P., 2006, the Magistrate took cognizance on the basis of the entry made
in the case diary. Material before the Magistrate were held to be sufficient to summon accused and
the power was exercised (to take cognizance) under Section 190 (1) (b) instead of Section 190 (1)
(a).
Transfer of case on application of Accused.- According to provision of Section 191 of Cr.P.C.,
when a Magistrate takes cognizance of an offence the accused shall before any evidence is taken,
be informed that he is entitled to have the case enquired into or tried by another Magistrate and if
the accused or any of the accused, if there be more than one objects to further proceeding before
the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be
specified by the Court of Chief judicial Magistrate.

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Ans.9) Power of transfer of cases and appeals may be discussed into following heads-
(i) Power to Supreme Court to transfer cases and appeals.
(ii) Power of High Court to transfer cases and appeals.
(iii) Power of Sessions Judge to transfer cases and appeals.
(iv) Withdrawal of cases and appeals by Sessions Judge.
(v) Withdrawal of cases by Judicial Magistrates.
(i) Power of Supreme Court to transfer cases and appeals- Whenever it is made to appear to the
Supreme Court that an order under Section 406 of the Code of Criminal Procedure is expedient for
the ends of justice, it may direct that any particular case or appeal be transferred from one High
Court to another High Court or from a Criminal Court subordinate to one High Court to another
Criminal Court of equal or superior jurisdiction subordinate to another High Court.
The Supreme Court may act under Section 406, Criminal Procedure Code, only on the application
of the Attorney-General of India or the Advocate-General of the State and supported by affidavit
or affirmation.
In Avtar Singh v. State of M.P., AIR 1982, the Supreme Court has held that an allegation that the
Sessions Judge was biased against the accused as he did not allow the accused to sit down during
trial, carries no substance and it did not effect the fair and impartial trial. But in the case of S.K.
Shukla v. State of U.P., 2006, the accused was charged under provisions of POTA and other Acts.

(ii) Power of High Courts to transfer of cases and appeals- Section 407 deals with the powers
of the High Court to transfer cases and appeals from a Criminal Court subordinate to its authority
to any other Court of equal or superior jurisdiction. Where it is made to appear to the High Court-
(a) that a fair impartial inquiry or trial cannot be held in any Criminal Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that an order under Section 407 of the Code of Criminal Procedure is required by any provision
of the Criminal Procedure Code, or will tend to the general convenience of the parties or witnesses
or is expedient for the ends of justice, it may order-
(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185
(both inclusive) of the Code of Criminal Procedure, but in other respect competent to inquire into,
or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal
Court subordinate to its authority to any other such Criminal Court of equal or superior
jurisdiction;

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(iii) that any particular case be committed for trial to a Court of Session, or
(iv) that any particular case or appeal transferred to and tried before itself.
The High Court may act on the report of the lower Court on an application of a party interested, or
on its own initiative provided that no application shall lie to the High Court for transferring a case
from a Criminal Court to another Criminal Court in the same Sessions division. unless an
application for such transfer has been made to the Sessions Judge and rejected by him.
Every application for an order under sub-section (1) of Section 407 of the Code of Criminal
Procedure shall be made by motion, which shall. except when the applicant is the Advocate-
General of the State. be supported by affidavit or affirmation.
(iii) Power of Sessions Judge to transfer cases and appeals- Under Section 408, Cr.P.C.,
whenever it is made to appear to a Sessions Judge that an order under sub-section (1) of Section
408. Criminal Procedure Code, is expedient for the ends of justice, he may order that any particular
case be transferred from one Criminal Court to another Criminal Court in his Sessions divisions.
The Sessions Judge may act on the-
(i) Report of Lower Court.
(ii) Application of Party, or
(iii) On his own initiative.
(iv) Withdrawal of cases and appeals by Sessions Judge- Under the provisions of Section 409 a
Sessions Judge may withdraw any case or appeal from, or recall any case or appeal which he has
made over to any Assistant Sessions Judge or Chief Judicial Magistrate subordinate to him.
At any time before the trial of the case or the hearing of the appeal has commenced before the
Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he had made
over to any Additional Sessions Judge.
Where Sessions Judge withdraws or recalls a case or appeal under sub-section (1) or sub-section
(2) of Section 409 of the Code of Criminal Procedure, he may either try the case in his own Court
or hear the appeal himself or make it over in accordance with the provisions of the Code of
Criminal Procedure to another Court for the trial or hearing, as the case may be.
(v) Withdrawal of cases by Judicial Magistrates- According to Section 410 of Cr.P.C., the Chief
Judicial Magistrate withdraw any case from or recall any case which he has made over to any
Magistrate subordinate to it and may inquire into or try such case himself or refer it for inquiry or
trial to any other such Magistrate competent to inquire into try the same.

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Ans.10) For granting bail regarding apprehension of arrest two conditions afe required to be fulfilled-
(i) The person has reason to believe that he may be arrested,
(ii) There must be an accusation of having committed a non-bailable offence.
Application for anticipatory-bail is given under Section 438 of Cr.P.C. to High Court or Court of
Session for a direction under this section that in the event of such arrest he shall be released on bail
and that Court may, after taking into consideration following factors-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant
by having him so arrested, either reject the application forthwith or issue an interim order
for the grant of anticipatory bail.
Where the High Court or, the Court of Session as the case may be, has not passed any
interim order under sub-section (1) or has rejected the application for grant of anticipatory bail, it
shall be open to an officer-in- charge of a police station to arrest, without warrant the applicant on
the basis of accusation apprehended in such application.
In Pukar Ram v. State of Rajasthan, 1985, it was held that the Court must be cautious in
exercising power under Section 438 of the Code of Criminal Procedure.
Where the Court grants an interim order under sub-section (1) a notice being not less than seven
days notice along with copy of such order will be given to the Public Prosecutor and the
Superintendent of Police. The applicant seeking anticipatory bail shall remain present at the time
of final hearing of the application and passing of final order by the Court of such presence of the
applicant is necessary in the interest of justice and an application in this regard has been moved by
the Public Prosecutor. Once the presence of the applicant is considered necessary it becomes
obligatory on him.
Section 18 of the SC/ST (Prevention of Atrocities) Act, 1989 excludes the application of the
provisions relating to grant of anticipatory bail to offenders under the Act. Had if not been so, the
provision of the Cr.P.C. under Section 438 could have been misused to bulldodge the legislative
intent and spirit of the Act. This view was expressed by the Supreme Court of India in Girdhari
Lal Iv. State of Rajasthan, 1996.

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Ans.11) Section 154 deals with information in cognizable cases. According to every information relating
to commission of cognizable offence, if given orally to an officer-in-charge of a police station shall
be reduced to writing by him or under his direction.
In a murder case when information was given on the basis of hearsay. it is not liable to be treated
as FIR. The statement of an eye-witness though recorded later in point of time is FIR. [Umesh
Singh v. State of Bihar, 2013]
If the information is given by the woman against whom an offence under Section 326A,
Section 326B. Section 354, Section 354A. Section 354B, Section 354C, Section 354D. Section
376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E or Section 509 of
the Indian Penal Code (45 of 1860) is alleged to have been committed of attempted, then such
information shall be recorded, by a woman police officer or any woman officer.
Information in Non-cognizable cases- According to Section 155 of Cr.P.C.-(1) When
information is given to an officer-in-charge of a police station of the commission within the limits
of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of
the information in a book to be kept by such officer in such forms as the State Government may
prescribe in this behalf, and refer the informant to the Magistrate.
Power of police officer to investigation the matter-It may be discussed in following heads-
(1) police officer's power wer of investigation in cognizable offences,
(2) police officer's power in non-cognizable offences.
(1) Police officer's power of investigation in cognizable offences- According to Section 156 of
Cr.P.C.-(1) Any officer-in- charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on
the ground that the case was one which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as
abovementioned.
(2) Police officer's power in non-cognizable offences- According to Section 155 of Cr.P.C.-(1)
If, from information received or otherwise, an officer-in-charge of a police station has reason to
suspect the commission of an offence which he is empowered under Section 156 to investigate, he
shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such
offence upon a police report and shall proceed in person, or shall depute one of his subordinate

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 officer not being below such rank as the State Government may, by general or special order,
prescribe in this behalf, to proceed to the spot, to investigate the facts and circumstances of the
case, and, if necessary to take measures for the discovery and arrest of the offender: Provided that-
(a) when information as to the commission of any such offence is given against any person by
name and the case is not of a serious nature, the officer-in-charge of a police station need not
proceed in person or depute a subordinate officer to make an investigation on the spot;
(b) if it appears to the officer-in-charge of a police station that there is no sufficient ground for
entering on an investigation, he shall not investigate the case.

Ans.12) (1) Chapter XII of the Code of Criminal Procedure deals with the information to the police and
their powers to investigate. Section 154 of this chapter provides for entering information relating to
a 'cognizable offence' in a book to be kept by the officer-in-charge of a police station and such
entry is called "FIR". Section 156 of the Code of Criminal Procedure empowers officer in charge
of police station to investigate any cognizable offence without specific orders of Magistrate, more
such investigation cannot be interfered.
(2) Since under Code of Criminal Procedure information regarding commission of an offence one
can also file a complaint before Magistrate. Whenever a complaint is received by a Magistrate
under section 200 of the code, if Magistrate proceeds to record statement of complainant on his
complaint, it means magistrate has taken cognizance of that complaint. If however magistrate
before taking cognizance of matter, on prime facie assessments of facts, find necessity of police
investigation into the facts alleged in complaint, such direction to police to investigate is to be
given under the provisions of section 156(3) of the Criminal Procedure Code.
It is not mandatory for the Magistrate to allow every application moved under section
156(3) of the Criminal Procedure Code. It is the judicial discretion of the Magistrate to make order
for investigation under section 156(3) of the Criminal Procedure Code, having regard to facts and
allegation stated in the complaint. But, it must be noted power under section 156(3) of the Code
can be exercised before taking cognizance.
section 202 comes in at a stage when some evidence has been collected by the Magistrate in
proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the
next step in the prescribed procedure. In such a situation, the Magistrate is empowered under
section 202 to direct, within the limits circumscribed by that section, an investigation.
In Ramesh bhai Pandurao Hedau v. State of Gujarat, AIR 2010, while explaining difference
between power under these two provisions, Supreme Court observed as "The power to direct an
investigation to the police authorities is available to the Magistrate both under section 156(3) and
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202 of the Criminal Procedure Code. The only difference is the stage at which the said powers may
be invoked. The power under section 156(3), the to direct investigation by t an Police authorities is
at the pre-cognizance stage while the power to direct a similar investigationunder section 202 is at
the post-cognizance stage.

Ans.13) As a general rule, accused can be convicted for only that offence for which he is
charged. However, there are two exceptional circumstances contemplated in law. Firstly, in section
221(2) and section 222 of the Code of Criminal Procedure.
Section 221(2) of the Code applies when Court had felt doubt, at the time of framing the Charge,
as to which of the several acts (which may be proved) will constitute the offence on account of the
nature of the acts or series of acts alleged against the accused. In such a case sub-section (2)
permits "to convict the accused" of the offence of which he is shown to have committed though he
was not charged with it.
(3) Whereas section 222(1) of the Code deals with a case "when a person is charged with an (
offence consisting of several particulars." The section permits the Court to convict the accused "of
the minor offence, though he was not charged with it." Sub-section (2) deals with a similar, but
slightly different situation by providing as "when a person is charged with an offence and facts are
proved which reduce it to a minor offence, he may be convicted of the minor offence although he
is not charged with it."
In Pandharinath v. State of Maharashtra, IX (2009), where accused was though Charged for
offence under section 376 of the Indian Penal Code, however, it appears to the Court that section
376 of the Indian Penal Code is not applicable but a lesser offence under section 376 read with
section 511 of the Indian Penal Code is made out, the Court is not prevented from taking recourse
to section 222 of the Criminal
Ans.14) (i) Section with, is only a fact discovered' which may be357 of the Code of Criminal
Procedure has not only recognized the philosophy of Compensation simplicities to the victims of
crime even when no sentence of fine is imposed, but also added a new positive dimension to the
idea of compensating them. Prior to inclusion of this clause no compensation could be awarded
unless a substantive sentence of fine was passed and then too this was limited only to the extent of
the fine actually realised. It can be for any amount and not limited to the amount of fine imposed
or recovered.
So section 357 of the Indian Penal Code prescribes provision empowering the Court to pass order
for payment of compensation. In the event an accused is found guilty of of the charge framed
against him. Sub-section (1) of section 357 prescribes that when Court imposes a sentence of fine,
the fine money may be distributed to defray the expenses incurred by the prosecution or it may be
directed to be paid as compensation to the person who suffered the loss or injury because of the

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commission of the offence etc. Sub-section (3) prescribes that when the Court imposes a sentence
of which fine does not form a part, the Court may order the accused person to pay by way of
compensation, such amount as may be specified in the order to the person who has suffered any
loss or injury by reason of the act for which the accused person has been so sentenced. The
provision therefore clearly contemplates that when a sentence of fine is imposed, the Court may
direct the fine money to be paid to the persons who suffered the loss or injury. Once fine is
imposed as a part of sentence, the Court cannot apply the provision of sub-section (3) and further
direct the convict to pay compensation to the victim of the crime. (1) Section 357A has been
inserted by the Criminal Procedure Code (Amendment) Act, 2009, which lay down "Victim
Compensation Scheme". Provision lay down as:
(1) Every State Government in co-ordination with the Central Government shall prepare a scheme
for providing funds for the purpose of compensation to the victim or his dependents who have
suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service
Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of
compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded
under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or
discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial
takes place, the victim or his dependents may make an application to the State or the District Legal
Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under subsection (4), the State or the
District Legal Services Authority shall, after due enquiry-award adequate compensation by
completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering
of the victim, may order for immediate first-aid facility or medical benefits to be made available
free of cost on the certificate of the police officer not below the rank of the officer in charge of the
police station or a Magistrate of the area concerned, or any other interim relief as the appropriate
authority deems fit.
(ii) It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one
and the same offence. The rule provides foundation for the pleas of Autrefois acquit and autrefois
convict and this is commonly known as double jeopardy.
Article 20(2) of the Constitution of India says that no person shall be prosecuted and punished for
same offence more than once. This is called doctrine of double.
There are two aspects of doctrine of jeopardy viz. Autrefois acquit and autrefois convict. Autrefois
convict means that person has been previously convicted in respect of same offence. Autrefois
acquit means that person has been acquitted on same charge on which he is being prosecuted.
Constitution bars double punishment for same offence.
Though Article 20(2) of the Constitution of India embodies a protection against a second
trial after a conviction of the same offence, the ambit of the clause is narrower than the protection
afforded by section 300 of the Criminal Procedure Code as held in Manipur Administration supra
that if there is no punishment for the offences as a result of the prosecution, Article 20(2) has no

15
application for the clause embodies the principle of autrefois convict, whereas, section 300 of the
Criminal Procedure Code combines both Autrefois acquit and autrefois convict. Section 300 has
further widened the protective wings by debarring a second trial against the same accused on the
same facts, even for a different offence, if a different charge against him for such offence could
have been made under section 221(1) of the Criminal Procedure Code, or he could have been
convicted for such other offence under section 221(2) of the Criminal Procedure Code.

Ans.15) Relevancy of Confession of an accused in Narco-analysis test undergone voluntarily the

Narco-analysis test or Brain Mapping test and Lie Detector test are violative of the Article 20(3)
and 21 of the Constitution of India, have already been answered by the authoritative
pronouncement by the Hon'ble Apex Court in the case of Smt. Selvi v. Stateof Karnataka, AIR
2010 that even when the subject has given consent to undergo any of these tests, the test results by
themselves cannot be admitted as evidence because the subject does not exercise conscious control
over the responses during the administration of the test. However, any information or material that
is subsequently discovered with the help of voluntary administered test results can be admitted, in
accordance with section 27 of the Evidence Act,1872.

Ans.16) Section 204 of Code of Criminal Procedure provides for issuance of process against
accused, when after taking cognizance of the offence, Magistrate is of opinion that there is
sufficient ground for proceeding. It provides as: "(1) If in the opinion of a Magistrate taking
cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a
summons case, he shall issue his summons for the attendance of the accused, or a warrant case, he
may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other
Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) untila list of
the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued
under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process fees or other fees are payable no
process shall be issued until the fees are paid and, if such fees are not paid within a reasonable
time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
Section 205, CrPC is of two parts. Sub-section (1) of section 205 deals with the Magistrate
dispensing with the personal attendance of the accused and permitting him to appear by his
pleader. Sub-section (2) of section 205 deals with the Magistrate enquiring into or trying the case
may, at any stage of the proceedings, direct the personal attendance of the accused, and, if
necessary, enforces his attendance in the manner provided by the code.

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Then section 206 of Code provides for issuance of special summons in cases of petty offences.
Section 207 provides for supply of copy provides as: of police report and other documents to
accused, it
"In any case where the proceeding has been instituted on a police report, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the
prosecution proposes to examine as its witnesses, excluding there from any part in regard to which
a request for such exclusion has been made by the police officer under sub- section (6) of section
173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police
report under sub-section (5) of section 173
Similarly section 208 of Code provides for supply of copies of statements to accused in proceeding
instituted otherwise than on police report, in case of offence triable by Court of Session. Section
208 reads as: "Where, in a case instituted otherwise than on a police report, it appears to the
Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of
Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of
the following:-
(i) the statements recorded under section 200 or section 202, or all persons examined by the
Magistrate;
(ii) the statements and confessions, if any, recorded under section 161 or section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:
Section 209 of Code provides for commitment of case by Magistrate to Court of Session when
offence is triable by Session Court.

Ans.17) Sub-section (2) to section 167 says that if the accused is produced before the Magistra
and if the Magistrate is satisfied looking to accusation then he can give a remand to the police for
investigation not exceeding 15 days in the whole. But the proviso further gives a discretion to the
Magistrate that he can authorize detention of the accused otherwise then the police custod beyond
the period of 15 days but no Magistrate shall authorize detention of the accused in police custody
for a total period of 90 days for the offences punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years and no Magistrate shall authorize the detention
of the accused person in custody for a total period of 60 days when the investigation relates to any
other offence and on expiry of the period of 90 days or 60 days as the case may be. He shall be
released if he is willing to furnish bail. Uday Mohanlal Acharya v. State of Maharashtra, AIR
2001, it was held that the indefeasible right of accused of being released on bail does not get
extinguished by subsequent filing of charge-sheet.

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 However now position has been made clear by the Apex Court that once the charge-sheet
has not been filed within the statutory period of 60/90 days as the case may be, then accused gets a
right to be released on bail upon furnishing the bail bonds and such right does not get extinguished
inspite of filing of charge sheet subsequently.
(Therefore Magistrate cannot cancel bail granted under section 167(2) of CrPC suo motto on
presentation of challan report under section 173 CrPC against the accused.

Ans. 18) F.I.R. is not a substantive piece of evidence; it can be used for contradiction and Ans-
18said corroboration to the statement of the author of F.I.R. in Court. In Ram Kumar Pandey v.
State of Madhya Pradesh, AIR 1975 SC 1206 Supreme Court observed that "An F.I.R. is not a
Substantive piece of evidence and can only be used to corroborate the statement of the maker
under section 157 of the Evidence Act or to contradict it under section 145 of said Act. It can only
be used for corroboration or contradiction purposes.

Ans.19) Regarding use of such statement recorded under section 161 of Code, in course of
criminal trial, section 162(1) of the Code of Criminal Procedure, 1973 provides:
"No statement made by any person to a police officer in the course of an investigation under this
Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such
statement or any record thereof, whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in
respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose
statement has been reduced into writing as aforesaid, any part of his statement. It duly proved, may
be used by the accused, and with the permission of the Court, by the prosecution, to contradict
such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872),
and when any part of such statement is so used, any part thereof may also be used in the re-
examination of such witness, but for the purpose only of explaining any matter referred to in his
cross-examination.
First part of the above provision imposes a bar on the use of any statement made by any
person to a police officer in the course of investigation at any enquiry or trial in respect of any
affence under investigation at the time when such statement was made. The proviso lifts this ban to

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some extent and permits the use of such a statement for contradicting a prosecution witness in the
manner provided by section 145 of the Evidence Act by the accused, and also by the prosecution
but with the permission of the Court. Such a statement can be used for no other purpose.
However Shakila v. Nausher, AIR 1975 SC 1324, Supreme observed: "Under section 162 Cr.P.C.
only witnesses on behalf of the prosecution could be contradicted by reference to their statements
made to the police, and not court witnesses or defence witnesses.
In State of Kerala v. Babu, AIR 1999, it was observed that section 161 of the Code provides that
the police officer investigating a case is entitled to examine any person and reduce the statement of
such person in writing. This statement recorded by a police officer under section 161 even though
is a previous statement for the purpose of section 145 of the Evidence Act, such statement can be
used for the purpose of establishing a contradiction or impeaching the credit of the witness only in
the manner provided for in section 162 of the Code. The use of the previous statement recorded
under section 161 of the Code is controlled by section 162 of the Code.

Ans20). Section 160 and 161 of Code of Criminal Procedure provide for interrogation and
examination of witnesses by Police Officer during Investigation. Object of these sections is to
provide facility for Police Officer to obtain evidence in respect of crime under investigation
Section 160 of Code lays down that any police officer investigating a case, may require the
attendance before himself of any person being within the limits of his own or of adjoining station,
who appears to be acquainted with the facts and circumstances of the case. However Police Officer
cannot require to appear following persons before him:
(6) A male under the age of 15 years
(ii) A female.
The police have the power to examine witnesses during the course of an investigation. Section161
lays down:
(1) Any police officer making an investigation under this Chapter, or any police officer not below
such rank as the State Government may, by general or special Order, prescribe in this behalf,
acting on the requisition of such officer, may examine orally any person supposed to be acquainted
with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all the questions relating to such case put to him by
such officer other than questions the answers to which would have a tendency to expose him to a
criminal charge or to a penalty of forfeiture.

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(3) The police officer may reduce into writing any statement made to him in the course of an
examination under this section; and if he does so, he shall make a separate and true record of the
statement he records. it is clear from above discussion that whenever any person is interrogated by
a police officer in course of investigation of a case, such person shall be bound to answer truly all
the questions relating to such case put to him by such officer.
However person can refuse to answer only those questions the answers to which would
have a tendency to expose him to a criminal charge or to a penalty of forfeiture. In case where
person refuses to answer question which would have a tendend of to expose him to a criminal
charge or to a penalty of forfeiture, then he can be prosecuted for offered under section 179 of
Indian Penal Code.

Ans21). Sections 216 & 217 of Code then deal with alteration or addition of charge. Section 216
Dem powers the court to alter or add to the charge during the course of trial. It is provided that any
court may alter or add to any charge at any time before the judgment is pronounced. Every such
alteration or addition shall be read and explained to the accused. If the alteration or addition to a
charge is such that the proceeding immediately with the trial is not likely, in the opinion of the
Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the
Court may, in its discretion, after such alteration or addition has been made, proceed with the trial
as if the altered or added charge had been the original charge.
If the alteration or addition is such that proceeding immediately with the trial is likely, in
the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may
either direct a new trial or adjourn the trial for such period as may be necessary. If the offence
stated in the altered or added charge is one for the prosecution of which previous sanction is
necessary, the case shall not be proceeded with until such sanction is obtained, unless, sanction has
been already obtained for a prosecution on the same facts as those on which the altered or added
charge is founded.
(2) (According to section 217, whenever a charge is altered or added to by the Court after the
commencement of the trial the prosecutor and the accused shall be allowed- (a) to recall or re-
summon, and examine with reference to such alteration or addition any witness who may have
been examined, unless the Court, for reasons to be recorded in writing, consider that the prosecutor
or the accused, as the case may be, desires to recall or re-examine such witnesses for the purpose
of vexation or delay and for defeating the ends of justice;
(b) also to call any further witness whom the court may think to be material.
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Ans22). Section 51 of Code of Criminal Procedure provide when on personal search of an arrested
person certain articles are seized, a receipt showing the seizer of such articles shall be given to that
person. It lays down as: Section 51 of Code deals with the search of an arrested person. Section 51
requires that police officer making arrest may search person arrested and place in safe custody all
the articles other than necessary wearing apparel found upon him and receipt showing the article
taken in possession by the police officer shall be given to such person. Though it is desirable to
seal the recovered article at the spot in order to avoid any dispute about its identity but it is not
obligatory in a case when there is no question about identity of article recovered. Sub-section (2)
provides that whenever it is necessary to cause a female to be searched, the search shall be made
by another female with strict regard to decency.
Section 93 of Criminal Procedure Code provide that "Search Warrant" can be issued if the court
has reason to believe that: (a) A person who in spite of summons or requisition under sections 91
and 92 of Code, to produce a document, will not or would not produce it, or(b) Where such
document or thing is not known to the Court to be in possession of any person. Section 97 of CrPC
also empowers any District Magistrate, Sub-Divisional Magistrate or Magistrate of First Class to
issue search warrant if Magistrate has reason to believe that any person is wrongfully and
unlawfully confined in any place.
Section 165 of Code is another important provision which provides that a police officer making an
investigation has reason to believe that anything necessary for the purpose of an investigation may
be found in any place within the limits of his police station and such thing in his opinion cannot
otherwise be obtained without undue delay, such police officer after recording in ding in writing,
his grounds of belief, search or cause the search to be made for such thing and search shall be
made in accordance with general provisions as to search contained under section 100 of Code.

Ans 23). The criminal trial has six phases namely (1) appearance, (2) (2) hearing before charge
and framing charge, (3) evidence, (4) record of statement under section 313 Cr. P.C. Cr. P.C. (5)
argument, and (6) judgment. The accuser’s presence is necessary on the date of framing of the
charge, evidence and on the date of conviction judgment. Relevant provisions of Code of Criminal
Procedure in this regard are sub-sections (5), (6) & (7) of section 353.
Section 353(5) says if accused is in custody, he shall be brought-up the judgment (1) pronounced.
Section 353(6) says if accused is not in custody he shall be required to attend to hear the judgment
except where his personal attendance during trial has been dispensed with and the sentence is one

21
 of fine or he is acquitted. However where there are more accused than one and one or more of
them do not attend the court on the date on which judgment is to be pronounced, presiding officer
may in order to avoid undue delay in disposal of case, pronounce the judgment notwithstanding
their absence. Section 353(7) provides that no judgment delivered by any criminal court shall
deemed to be invalid by reason of absence of any party or pleader on the day or from the place
notified for delivery thereof. Therefore:
(i) Court should not deliver judgment if accused A is to be sentenced to imprisonment. (ii) Court
may deliver judgment if accused had been granted exemption from personal appearance during
trial, if sentence is one for fine or he is acquitted

Ans.24) The decision of the Constitution Bench of Apex Court in Gurbaksh Singh Sibbia v. State
of Punjab, (1980) 2 SCC 565: AIR 1980 SC 1632 clearly lays down that the distinction between an
ordinary order of bail and an order of anticipatory bail.
Whereas the former is granted after arrest and therefore means release from the custody of the
police, the latter is granted in anticipation of arrest.
It is a pre-arrest legal process which directs that if the person in whose favour it is issued is
thereafter arrested on the accusation in respect of which the direction is issued, he shall be released
on bail.

Ans.25) Chapter XXI of Criminal Procedure Code deals with Summary Trial. Section 260 of
Code says that Chief Judicial Magistrate, Metropolitan Magistrate or Magistrate of First Class
specifically empowered by High Court may try in a summary way following offences:-
(i) Offences not punishable with death or imprisonment for life or for term exceeding 2 years
(ii) Theft, where the value of property stolen does not exceed two hundred rupees
(iii) Receiving or retaining stolen property where value of property does not exceed Rs. 200.
(iv) Offences of assisting in concealing or disposal of stolen property.
(v) Offences under sections 454 and 456 of I.P.C.
(vi) Offences of insult with the intent to invoke a breach of peace under Section 504 or
Criminal intimidation under section 506 of L.P.C.
(vii) Offences in respect of which complaint may be made under section 20 of Cattle Trespass
Act, 1871.

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Section 260(2) says if during the course of summary trial, it appears to Magistrate that nature of
case is such that it is undesirable to try such case summarily, he shall recall any witness who may
have been examined and proceed to rehear the case in the manner as provided by Code.
Sham Lal v. State of Punjab, 1977 - It was observed that "Procedure for summary trial of cases is
laid down in Chapter XXI of Code of Criminal Procedure and section 262 says that even in such
trials procedure laid down for summons cases shall be followed if the offence is triable as
summons cases and that of warrant cases where the offence is triable as a warrant case. Section
263 prescribes the nature of record that has to be kept in non-appealable cases. Though it is stated
that in such cases the Magistrate need not to record evidence of witnesses or frame formal charges
however particulars of offence complained of and offence proved must be entered on the record.

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