CRIMINAL PROCEDURE CODE

Solved PYQ’S – X Sem BA.LLB

YEAR 2023-24
RASHI CHAKRAWATI WAGHMARE
V BA.LLB
 Criminal procedure code [ Sem X]
Module 7
Q.1. What is an anticipatory bail? Explain when can avail an anticipatory bail under
Criminal Procedure Code, 1973.
Ans.
There are three kinds of bail provided under Chapter XXXIII of CrPC i.e. regular, interim, and
anticipatory Bail. Section 438 primarily addresses pre-arrest bail for non-bailable offences. A
person apprehended for arrest may apply to the Court of Session or High Court for a direction
to be released on bail. The power to grant anticipatory bail is ultra vires for the lower courts.
Under the Code of Criminal Procedure (1898), there was no provision related to anticipatory
bail. Anticipatory bail evolved as a result of judicial decisions interpreting Sections 496, 497,
and 498 of the Code of Criminal Procedure, 1898.
Section 438(1A) of the Criminal Procedure (Amendment) Act, 2005 deals with the following
factors that the court considers before granting anticipatory bail:
1. The nature and gravity of the accusations.
2. The charge levelled against the applicant intends to harm or humiliate him by having
him detained.
3. The applicant’s record, including whether he has previously been imprisoned or
sentenced by a court for any cognizable offence.
4. The potential of the applicant to defy justice.
If the High Court or Court of Session has not issued an interim order or has rejected the
application for anticipatory bail, an officer in charge of a police station may arrest the applicant
without a warrant based on the accusation included in the application.
Conditions that may be imposed by the court while granting anticipatory bail:
i. That individual makes himself accessible for questioning by a police officer when
required.
ii. That individual must provide the local police station with their current residence
address, native address, and phone number.
iii. That the individual will not offer any inducement, threat, or assurance to any person
familiar with the facts of the case, directly or indirectly, to prevent him from disclosing
such information to the court or any police officer.
iv. That the individual will not leave the territory of India without prior authorization from
the court.
v. Any other additional condition under Section 437(3) may be imposed as if the bail was
granted under that Section.
In a landmark judgement, Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Hon’ble
Supreme Court ruled that an individual must have reasonable grounds to apply for anticipatory
bail to apprehend the arrest and that “reason to believe” means the apprehension must be
established on reasonable grounds and not just a mere “belief” or “fear”.

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Cancellation of anticipatory bail under Section 439 CrPC
Section 439 deals with the extraordinary powers of the High Court or Court of Session
regarding bail. A High Court or Court of Session has the power to order the arrest and custody
of any individual who has been granted bail under Section 439(2). A High Court or Court of
Session may order-
 Any accused person of an offence who is in custody must be released on bail if the
nature of the offence is stated in Section 437(3), or may impose any condition that it
deems necessary for the purposes listed in that subsection.
 Any restriction that a magistrate imposed on a person’s release on bail may be lifted or
changed, on the condition that the High Court or Court of Session notifies the Public
Prosecutor of the application for bail and provides written notice of the reasons for
doing so before releasing an accused on bail who can only be tried by the Court of
Session or carries a sentence of life imprisonment.
In the case of Charu Soneja v. State (Nct Of Delhi) (2022), the Delhi High Court defined the
difference between a dismissal of a bail application and a cancellation of bail. The Court has
opined that it is within its discretion to dismiss a bail order for non-bailable offences. It can be
rejected simply because of the nature of the offence and the possibility that the accused will
abuse his or her liberty if granted. In the case of cancellation of the bail application, the court
has the authority to rescind the previously granted liberty.
An individual who commits an offence under the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 cannot apply for anticipatory bail under Section 438 of the
Code of Criminal Procedure, 1973 as per the provision of Section 18 of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018, incorporated Section 18A,
which clarified that it is not necessary to conduct a preliminary investigation before filing a
First Information Report against a person, and the provision of Section 438 shall not be
applicable under this Act unless any court passes any judgement, order, or direction. However,
the Chhattisgarh High Court in the case of Jawed Khan v. the State of Chhattisgarh (2022)
ruled that if the offence seems to be an abuse of the law, anticipatory bail can be granted.
Important Case Laws:
1. The Supreme Court ruled in Directorate of Enforcement v. Ashok Kumar Jain (1998)
that an accused person is not entitled to anticipatory bail when charged with an
economic offence. Except in cases when the court is immediately persuaded that the
charge against the defendant appears to be false or groundless, Section 438 discretion
cannot be applied to offences with the punishment of death or life imprisonment
2. In the case of Sangeeta Bhatia v. State Of Nct Of Delhi (2022), the Delhi High Court
ruled that anticipatory bail has its roots in Article 21 of the Indian Constitution and that
Section 438 of the Criminal Procedure Code establishes it as a statutory right.
3. In the case of Gurbaksh Singh Sibbia & Ors. v. State of Punjab (1980), the Hon’ble
Supreme Court ruled that the legality of Section 438 must be assessed by the standard
of fairness, which is inherent in Article 21.

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Conclusion
Anticipatory bail has been used as a defence against unfair detention for persons wrongfully
accused of crimes. The power of anticipatory bail must be exercised in exceptional instances
when the courts consider the petitioner is being falsely charged. Furthermore, in addition to
safeguarding the interests of the accused, anticipatory bail as a legal measure forbids the
accused from abusing his freedom or evading justice.

Q.2. Explain the provisions related to trial before the Court of Session under Criminal
Procedure Code,1973.
Ans. Trial before a Court of Session:
The code lays down the procedure for trial before a court of session as follows:
1. Parties (sec. 225): In a trial before a court of session, the prosecution shall be conducted by
a public prosecutor. The accused has a right to engage a counsel of his choice. If he cannot
afford to engage the defence counsel, the court engaged at the state expenses. Before
commencing the trial, the accused in supplied with the copies of documents like police report,
F.I.R etc.
2. Opening the case (sec. 226): The public prosecutor opens the case by describing accusation
against the accused. He states briefly by what evidence, he proposes to prove the guilt. The
prosecutor duty is not to secure a conviction but simply to lay the facts of the case before the
tribunal, which is to judge.
3. Discharge of the accused (sec. 227): After hearing from both the parties if the court
considers that there is no sufficient ground to proceed against the accused, discharges him and
records the reason for doing so. There is no scope for examination of any witness but there is
scope for both sides to argue their case in favour of framing charge or discharge.
4. Framing of charge (sec. 228): After hearing from both the parties if the court presumes that
the accused might have committed the offences:
i) If frames a charge in writing, if the offence is exclusively triable by the Court of Session.
ii) If the offence is not triable exclusively by the session’s court, it frames charge and transfers
the case to the Chief Judicial Magistrate. It was held in Kanti Bhadra Shah & anr v. State of
West Bengal while exercising power under Section 228 CrPC, the Judge is not required to
record his reasons for framing the charges against the accused.
While framing charges, only the prima facie case has to be seen. At this stage, the Judge is not
required to record a detailed order necessary to see whether the case is beyond reasonable doubt
as held by the Supreme Court in Bhawna Bai v. Ghanshyam & Ors.
5. Explaining the charge and enquiry about plea (sec. 228(2)): The contents of the charge
have to be explained to the accused as to enable him to plead guilty of the offence or claim to
be tried.

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6. Conviction on plea of guilty (sec. 229): If the accused pleads guilty, the judge shall record
the plea and may in his discretion convict him thereon. The Court cannot convict an accused
on the basis of the plea of guilty where the offence is of a nature in which the punishment is
death or imprisonment for life. In Hasaruddin Mohommad v. Emperor, the Court held that it
will be reluctant for the Court to convict a person accused of an offence in which the
punishment is death or life imprisonment on the basis of his plea of guilty. The right of appeal
of the accused is curtailed by Section 375 If the accused is convicted on the basis of his plea of
guilty.
7. Date for prosecution evidence (sec. 230): If the accused refuses to plead or does not plead
or claims to be tried or is not convicted under sec. 229, the judge shall fix at date for the
examination or witness or may order for compelling appearance of any witness or production
of a thing/document.
8. Evidence for prosecution (sec.231): It consists of two points:
i) On the date so fixed as above, the judge takes all such evidence is support of the prosecution.
ii) The judge may in his discretion, permits the cross examination of any witness to be deferred
until any other witness have been examined or recall any witness for further cross examination.
The Court observed in State of Kerala v. Rasheed that a balance must be struck between the
rights of the accused and the prerogative of the prosecution to lead the evidence while deciding
an application under Section 231(2). The following factors must be considered:
1. The possibility of undue influence,
2. Threats,
3. That non-deferral would enable subsequent witnesses giving evidence on similar fact to tailor
their testimony to circumvent the defence strategy,
4. Loss of memory of the witness whose examination-in-chief has been completed.
9. Arguments of the prosecution (sec. 314(2)): The prosecution after the close of witnesses
submits a memorandum of his oral arguments. A copy of the same if is supplied to the opposite
party.
10. Examination of the accused: It is to be made without administering oath. It is to give an
opportunity to him to explain the circumstances alleged against him by prosecution.
11. Acquittal (sec. 232): After hearing from both the parties if the judge considers that the
accused has not committed the offence, record an order acquitting the accused.
12. Entering upon defence (sec. 233): If the accused is not acquitted, he shall be called upon
to enter on his defence. The court may summon or examine at any stage any person as court
witness.
13. Arguments (sec. 234): After recording defence, the prosecutor sums up his case and the
accused or his pleader shall be entitled to reply. The prosecutor may be allowed to make his
submission in case any law point is raised by the defence.

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14. Judgment of acquittal or conviction (sec. 235): After hearing arguments from both the
sides, the court delivers judgment of acquittal or conviction. On this point, the Apex Court in
Santa Singh v. State of Punjab held that the Judge should first pass a sentence of conviction or
acquittal. If the accused is convicted, he shall be heard on the question of sentence and only
then the Court shall proceed to pass a sentence against him.
In Bacchan Singh v. State of Punjab, it was ruled by the Court that this Section provides for a
bifurcated trial and specifically gives to the accused person a right of pre-sentence hearing
which may not be strictly relevant to or connected with the particular crime under inquiry but
may have a bearing on the choice of the sentence.
15. Previous Conviction (sec. 236): In a case where a previous conviction is charged under
the provisions of sub-Sec. (7) of Sec. 211, and the accused does not admit that he has been
previously convicted as alleged in the charge, the judge may take evidence in respect of the
alleged previously conviction and shall record a finding there on:
Provided that no such charge shall be read out by the judge not shall the accused be asked to
plead thereto nor shall the previous conviction be referred to by the prosecution or in any
evidence adduced by it unless and until the accused has been convicted under sec. 299 or sec.
235.
Procedure in cases instituted under sec. 199(2) (sec. 237):
i) A Court of Session taking cognizance of an offence under sub sec. (2) of sec 199 shall try the
case in accordance with the procedure for the trial of warrant cases instituted otherwise than
on a police report before a court of magistrate.
ii) Every trial under this section shall be held in camera if either party thereto so desires or if
the court thinks fit so to do.
iii) If, in any such case, the court discharges or acquits all or any of the accused and is of the
Opinion that there was no reasonable cause for making the accusation against them or any of
them, it may try its order of discharge or acquittal, directs the person against whom the offence
was alleged to have been committed to show cause why he should not pay compensation to
such accused or to each or any of such accused, when there are more than one.
iv) The court shall record and consider any cause which may be shown by the person so directed
and if it is satisfied that there was no reasonable cause for making the accusation, it may make
an order that compensation to such amount not exceeding Rs.1000 it may determine, be paid
by such person to the accused or to each or any of them.
v) Compensation awarded under sub sec. (4) shall be recovered as if it were a fine imposed by
a magistrate.
vi) No person directed to pay compensation under sub sec (4) shall be exempted from any civil
or criminal liability 1n respect of the compliant made under this section.
vii) The person who has been ordered under sub sec. (4) to pay compensation may appeal to
the High Court.

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viii) When an order for payment of compensation to an accused person is made, the
compensation shall not be paid to him before the period allowed for the presentation of the
appeal has elapsed, or if an appeal is presented, before the appeal has been decided.
Conclusion
The Code of Criminal Procedure provides an opportunity for the accused for fair trial and
makes an effort to avoid any delay in investigation or trial. The Judge in every case ensures
that the accused is given a fair opportunity of hearing and defending his case. The Code also
provides for legal aid to an indigent accused who is unable to engage a lawyer in compliance
with the constitutional requirements and also as required by Section 304 so that any person
accused of committing an offence is not wrongly convicted and justice is served.

Q.3. General rule is that Bail can be given in bailable offences. What are the exceptions
to this general rule?
Q.4. How does the Criminal Procedure Code,1973 deal with the bail process and what are
the factors that the courts consider while granting bail to the accused?
Ans. Introduction
‘Bail is rule, jail is an exception’ is a legal principle that was laid down by the Supreme Court
in a landmark judgement of State of Rajasthan v. Balchand alias Baliya in 1978.
The concept of Bail is provided by Chapter XXXIII (Thirty-Three) of the Code of Criminal
Procedure, 1973 (CrPC) titled ‘Provisions as to Bail and Bonds’. It consists of Sections 436-
450.Bail means short-term release of an accused person awaiting trial.
Bail is the judicial release of an accused charged with a certain offence by imposing some
restrictions on him and compelling him to remain within the jurisdiction of court.
It is a provisional release of a detained person, who is accused of a crime and the judgement is
yet to be given. The term ‘Bail’ has been derived from a French verb ‘Bailer’ which means ‘to
give’ or ‘to deliver.’ Bail is granted keeping in mind the objective behind arrest which is to
ensure the presence of the accused before the court for the trial without any inconvenience.
Classification of bails in India
In Indian law, the bails can be classified into the following three types:
1. Regular bail
It is a type of bail which is granted to an accused who has been arrested and is in police custody
after commission of a cognizable (an offense for which police can start the investigation before
the permission of the court and arrest the accused without a warrant) and non-bailable offense.
This type of bail facilitates the release of the accused from custody to be present at the trial.
These types of bails are granted under section 437 and 439 of the Indian Penal Code.
2. Anticipatory bail

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This type of bail can even be applied before an FIR is filed under section 154 of Cr.P.C and is
granted under section 438 of Cr.P.C. It is a pre arrest relief that may be applied for by the
plaintiff in the high courts or the courts of sessions.
The right to life under Article 21 of the Indian constitution and section 438 of Cr.P.C go hand
in hand. In the landmark case of Badresh Bipinbai Seth v. State of Gujarat, the apex court held
that the provisions of article 21 and its liberal interpretation should be taken into question while
granting anticipatory bail under S. 438.
3. Interim bail
This is a type of temporary bail which is awarded for a very short period of time in case the
application for anticipatory bail or normal bail is pending before the court. Usually, this type
of bail is applied when the accused wants to avoid the jail or custody time during the period of
the trial.
According to the nature of the offences and the right to obtain bail, offenses can be classified
as bailable and non bailable offenses.
Bailable offenses: These are the offenses where bail can be granted to an accused person as a
matter of right. Covered under section 436 of the Cr.P.C, these types of offenses usually carry
less than three years of punishment and are less heinous in nature. Bail in such offenses may
be granted either by the courts or the police/investigating officer handling the case after
furnishing various sureties or bonds by the accused or even without them. The presence of bail
bond plays a pivotal role in such type of offenses as the court or the police officer may refuse
to grant bail if the accused acts in contravention to the terms of the bond.
Non-bailable offenses. Covered under article 437 of the Cr.P.C, in these types of offenses, bail
is not available to the accused as a matter of right. Thus it solely rests upon the discretion of
the court to grant bail to the accused or not. These types of offenses are rather heinous in nature
and usually carry punishment term of more than 3 years. The criminal history of the accused,
his credentials, apprehension of danger to society in case he is let free and the risk of witnesses
being pressurized or led by the accused too become important factors while deciding the grant
of bail to the accused.
Conditions for Grant of Bail in Bailable/Non-Bailable Offences
 Conditions for bail in bailable offence are –
o There are sufficient reasons to believe that the accused has not committed the
offence.
o There is sufficient reason to conduct further enquiry in the matter.
o The person is not accused of any offence punishable with death, life
imprisonment or imprisonment up to 10 years.
 Conditions for grant of bail in non-bailable offences –
o If the accused is a woman or a child, bail can be granted in a non-bailable
offence.
o If there is lack of evidence then bail in non-Bailable offences can be granted.

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 o If there is delay in lodging FIR by the complainant, bail may be granted.
o If the accused is gravely sick.
Cancellation of Bail
 Court has the power to cancel the bail even at a later stage.
 The Court can cancel the bail granted by it and give directions to the police officer to
arrest the person and keep in police custody.
Case laws
1. Gurbaksh Singh Sibbia v. State of Punjab (1980)
In this case, the apex court held that Section 438 of the CrPC must be used very sparingly and
in exceptional cases only. However, the discretion of the court to grant bail cannot be limited
just because the offence is punishable with life imprisonment or the death penalty. Additionally,
the court held that the bail should not be limited by time, however, the court can impose
reasonable restrictions on the basis of the circumstances and the facts of the case.

2. Salauddin Abdulsamad Shaikh v. State of Maharashtra (1995)

This case overruled the judgement passed in the case of Gurbaksh Singh Sibba and held that
the grant of anticipatory bail should be limited by time. The court held that the anticipatory bail
must be granted for a limited period, on the expiration of which the matter must be left to the
regular court for decision.
Conclusion
The concept of bail in India has gone through various stages of dynamic change. Every change
has moulded the law of bail and the Supreme Court of India has played a paramount and vital
role in the same. The motive of bail is not to set free an accused but rather to set him free from
custody either on his personal bond or after having the assurance given by his sureties that the
accused would not escape from the law and they are bound to present him before the court.

Q.5] What is first information? briefly the provisions relating to first information under
Criminal Procedure, 1973. [15]
Ans. Meaning
The term ‘First Information Report’ has not been defined in the Code of Criminal Procedure.
Rather the term has not been used except in section 207 which requires the Magistrate to furnish
to the accused a copy of the First Information Report recorded under section 154 (1) of the
Code. The report first recorded by the police relating to the commission of a cognizable case
is the First Information Report giving information on the cognizable crime.
It may be defined as follows:
 It is a piece of information given to the police officer.
 The information must relate to a cognizable offence.

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  It is a piece of information reported first in point of time.
 The victim of the cognizable offence or someone on his/her behalf gives information
and lodges a complaint with the police.
This is the information on the basis of which investigation begins. The FIR must be in writing.
Sections Under CrPC which deals with the FIR are as follows:+
Section 2(c) of the CrPC defines the cognizable offences for which an FIR can be lodged.
These offences are listed in Schedule I of the Code. These offences fall under this category and
are allowed for filing/lodging an FIR.
Schedule I of the CrPC
Schedule I of the CrPC enlists the offences that are classified as cognizable offences, for
example, murder, robbery, etc. These offences require immediate police attention, and
preventive measures are needed to be taken by them. These offences are generally more severe
and graver in nature and act against the public interest at large.
Section 154(1) of the CrPC
Section 154(1) of the CrPC talks about the procedure for recording an FIR. Cognizable offences
that are reported orally or in writing must be written down by the police officer. They should
be re-read by the officer for the person lodging the FIR and signed by him thereafter. A copy
of the report must be given to the person lodging the FIR, i.e., the informant, free of cost. This
Section lays out a brief outline of the process by which an FIR must be recorded, documented,
and acted upon by the police officer.
Lalita Kumari v. Government of UP, 2013
The Supreme Court held that the conditions under Section 154(1) of the Code must be strictly
adhered to. The police must conduct a preliminary investigation to determine if the nature of
the offence is cognizable or non-cognizable. The informant must be told within seven days
after the preliminary inquiry is concluded, whether or not the FIR should be filed. If not, then
the reasoning must be provided
Section 154(3) of the CrPC
Section 154(3) of the CrPC talks about the actions to be taken if a police officer denies
recording the FIR. In such cases, the informant can go to the Superintendent of Police (also
known as the Deputy Commissioner in a Police Department). On satisfaction that the crime
committed is cognizable, he should either investigate the case himself or direct a subordinate
to take the required measures. This Section provides for a remedy or legal recourse that may
be taken by the informant if he feels that his complaint is not being entertained by the police
officer.
Object
The main objective of filing F.I.R. is to set the criminal law in motion. And also to enable the
police officer to start the investigation of the crime committed and collect all the possible pieces
of evidence as soon as possible.

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Essential Conditions of F.I.R.
In Moni Mohan v. Emperor, it was decided that the essential conditions of F.I.R. are:

 It must be a piece of information.

 It must be in writing. If given in writing, should be reduced into writing by the
concerned police officer.

 The main act or crime should be cognizable in nature, not the ones subsequent to the
main act.
The F.I.R. must be in the nature of complaint or accusation with the object of getting the law
in motion.
Evidentiary Value of F.I.R.
An FIR is not a substantive piece of evidence. That is, it cannot be considered as evidence of
facts stated therein. However, FIR may be used for the following purposes:
1. It can be used to corroborate an informant witness u/s 157 of Evidence Act. But it cannot
be used to contradict or discredit other witnesses.
2. It can be used to contradict an informant witness u/s 145 of Evidence Act.
3. FIR can be used by the defence to impeach the credit of the maker under sec. 155(3) of
the Evidence Act.
4. A non-confessional FIR given by an accused can be used as an admission against him
u/s 21 of Evidence Act.
5. FIR can be used as a dying declaration as substantive evidence If it relates to the cause
or occasion or circumstances and facts which resulted in the informant’s death. within
the meaning of section 32(1) of the Evidence Act.
If the accused himself lodges the FIR, it cannot be used for corroboration or contradiction
because the accused cannot be a prosecution witness, and he would very rarely offer himself
to be a defence witness u/s 315 of the Code.
Types of FIR
False FIR: An FIR filed with a malicious intention to spread false information about someone
or defame him.
Zero FIR: A zero FIR can be registered in cases of cognizable offences that require the
immediate attention of the police to act. It can be registered at any police station, irrespective
of jurisdiction.
Cross FIR: When the parties involved in a case file an FIR against each other regarding the
same incident, it is known as a cross FIR.
Multiple FIR: When the aggrieved parties file multiple FIRs for the same cause of action,
same incident, and same persons, it is called a multiple FIR. Filing multiple FIRs is prohibited
by the court in the case of Surender Kaushik v. State of UP (2013). This act jeopardises the
inquiry and causes confusion, and delays justice.

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Conclusion
The FIR is the stepping stone of the whole justice delivery system. It is a very crucial document
for every criminal case. It marks the beginning of the criminal prosecution. An FIR can be
registered in simple steps and is still a significant document for the investigation to begin. As
rightly observed in the case of Mohan Lal v. State of Uttar Pradesh (1988), an FIR is the Bible
of the case initiated on the public record. Hence, it is vital for every citizen to understand their
rights related to an FIR. These are very helpful in understanding how an individual should
proceed if he wishes to report a crime or raise his voice against public offences.

Module 4
Q.6. Explain Briefly the provision relating to production of things under Criminal
Procedure Code,1973. [15]
Ans. Introduction
Chapter VII of the criminal procedure code talks about the process to compel the production
of things. To find the person who had committed the offence the police must have to go through
a proper investigation. During the investigation, the police must enquire about the accused and
examine the surroundings of the area where the crime has happened. Section 91 to section 105
of the criminal procedure code deals with the provisions of process to compel the production
of things. During the investigation, one must have to follow the procedure mentioned in
sections 91 to 105 of the criminal procedure code.
Process to compel production of things
Section 91 to 105 of the Criminal Procedure Code talks about various ways through which the
court or the police can compel the individual to produce the necessary documents as mentioned
in Chapter VII of the Criminal Procedure Code.
The person can be compelled to produce things in four ways. They are through
1. Summons
2. Search warrant
3. General search
4. Seizure and others
Summons to produce
Section 91: Summons to produce document or other thing
Section 91 enables the Court or the Police Officer in charge of the Police Station to issue a
summon to produce a document or a thing for assistance in a trial, investigation or trial. The
power of the Court under section 91 of CrPC for summoning and production of documents is
one of absolute discretion. The only condition for exercising discretion under section 91 is that
the Court must believe that the production of the document is necessary or desirable.
Reason to believe

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The Court must have a reason to believe that the production of documents is necessary in the
interest of justice. The application for summoning the production of documents can only be
rejected by assigning some justified reasons to it. The wording of Section 91 gives wide powers
to the Court to summon documents and things. The term reason to believe is defined in section
26 of the Indian Penal Code.
‘Document or other thing’
The term document or thing used includes the meaning
1. The word thing refers to a physical object or a material thing and does not refer to an
abstract thing.
2. On such documents can be summoned which would have some bearing upon the facts
and circumstances of the case.
3. Therefore, the Officer or the Court summoning the documents must ensure whether
there is a prima facie case for supposing that the documents are relevant.
Whether Summon of Production can be issued to an Accused Person
The scope of Section 91’s language allows for the issuance of a summons for the production
of documents under an accuser’s control. However, this practice would not be in accordance
with Article 20(3)’s constitutional obligation in this regard. Such document production at the
accuser’s request would amount to self-incrimination and bias in the investigation against the
accused. The Court has held in numerous decisions that after carefully examining section 91,
it is obvious that it should not be used against the accused since doing so would amount to self-
incrimination and cause the accused undue hardship. Such an action would be considered
testimonial coercion.
Search Warrant (section 93 to 98)
Meaning
A search warrant is a written authority given to the police officer or other authorized person by
the magistrate or a court, for searching any place either generally or specified things or
documents or for persons confined or detained. A search carried out based on a search warrant
is a coercive method, as it invades the privacy of a person’s residence/home.
Scope
Section 93 to 98 of the Criminal Procedure Code deals with search warrants. Section 93
provides for three general rules to be kept in mind while issuing a search warrant and the
remaining three are provided by the successive sections i.e., 94, 95 and 97.
There are six circumstances where the court may issue a search warrant. They are:
1. When the person’s Non-compliance of summons issued under section 91
2. When such a document is not known to the Court to be in the possession of the person
3. When such document is necessary for inquiry, trial or other proceedings or for general
inspection or search;

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 4. Search of place under section 94
5. Search of persons under section 95
6. Compel restoration of abducted females under section 98.
Constitutional Validity of Search Warrants
Fundamental rights always outweigh legal rights; therefore, any search procedure shall only be
carried out where there is an absolute necessity to do so as it breaches the right to privacy
guaranteed under Article 21. The provision regarding search warrants has been questioned
when it comes to summoning the accused for the production of a document or title in his
possession.
Because of this, the courts have determined that such production would result in self-
incrimination and be against Article 20(3) of the Constitution. The search of the accused’s
property, however, does not amount to self-incrimination, and as a result, it does not violate
Article 20(3) of the Indian Constitution.
Section 93: when a search warrant can be issued. Scope & Application.
Section 93 not only applies when the inquiry is pending but also when an inquiry is about to
be made. The search warrant may be general or restricted in its scope as to place or part thereof.
Three cases in which a search warrant can be issued under section 93.
1. Where the Court has a reason to believe that the person summoned to produce a
document or thing will not produce a document or thing;
2. Where the document or thing is not known to be in the possession of any person;
3. Where a general search or inspection is necessary.
Reasons for allowing the search shall be recorded.
To search under a warrant, there must be a sufficient/judicious cause or reason; the court must
record these reasons in writing; and this step guarantees that the provision is not exploited or
misused. If no justifications are given when a search warrant is issued, the search is invalid and
hence illegal.
General Search Warrant
A general search warrant may only be obtained when the court is not aware that a particular
item or document is in the possession of any particular person. A general search warrant cannot
be issued if it is known where the item is located or who owns it.
Section 94: Search for a place
Under section 94 of the Criminal Procedure Code, the police can search any place they suspect
that there is the presence of stolen property or the sale or deposit of objectionable articles.
Section 94 applies to the objectionable articles including:
1. Counterfeit coins;
2. Counterfeit currency notes;

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 3. Counterfeit stamps;
4. Forged documents;
5. False seals;
6. Obscene material (under section. 292, IPC)
7. Instruments used are the production of anything mentioned from (1) to (6)
The District Magistrate or Sub Divisional Magistrate or Magistrate of the First Class can issue
a search warrant under section 94 of the Criminal Procedure Code. They may authorize a person
above the rank of a constable to search.
Requirements to issue a search warrant under section 94
1. The magistrate should have information regarding such objectionable material.
2. He shall conduct an inquiry as he thinks necessary.
3. The inquiry must disclose a reason to believe that the place is used for the deposit of
any objectionable material.
4. Powers and Duties of the Police Officer
5. Power to enter the premises;
6. Search;
7. Take possession of such objectionable material;
8. Take into custody and carry before a Magistrate such person found in the place where
such objectionable material was found.
9. To convey the property to the Magistrate.
Section 95:
A search warrant under section 95 is used to search newspapers, books or documents to declare
them as forfeited.
1. The State Government, by way of a notification, may declare that such publication shall
be forfeited to the State Government if any newspaper, document, or book contains
anything that constitutes an offence under Sections 124-A, 153-A, 153-B, 292, 293,
294, or 295-A of the IPC. 2. The State Government is required to state the grounds of
opinion on which the forfeiture must take place.
2. The entire piece of work under consideration must be considered.
3. Scholarly works on religion and history cannot be claimed to foster animosity among
people, hence this clause is not applicable.
4. Article 19(1)(a) of the Constitution’s guarantees are not violated by this section.
Section 96: Application to the High Court for the cancellation of a forfeiture declaration.

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 1. Anyone who has a stake in a newspaper, book, or document that the state government
has ordered forfeited may apply to section 96.
2. This application must be submitted within two months after the State Government’s
announcement is published.
3. A special High Court bench made up of three or more judges will hear this application.
4. As proof of its contents, a copy of the contested newspaper, document, or book must be
submitted as evidence.
Section 97: Search of Persons
Section 97 of the Criminal Procedure Code talks about the rescue of persons who are
wrongfully confined. The provisions of Section 97 are in pari materia to the writ of habeas
corpus. Therefore, a person wrongfully confined can be rescued with the intervention of the
Police under provisions of Section 97.
Case law: Parvin singh v. biharilal singh[1]
The Supreme Court ruled that in a situation where the child was living with his father, section
97 was not prima facie attracted.
The Apex Court denied a husband’s request for a search warrant under Section 97 for his
children who were with his wife in another similar instance since the mother is the children’s
natural guardian and this act does not constitute unlawful confinement under any applicable
law.
Section 98: Power to compel restoration of abducted females
Specifically, Section 98 only applies to women and female children under the age of 18 who
have been abducted or unlawfully detained for a wrongful reason. The fact that Section 98 does
not apply to male children indicates that it was designed to protect the interests of women in
our society who are more susceptible to being kidnapped for criminal purposes. Even if he is
the legal guardian, one parent cannot use the requirements of Section 98 to force the other
parent to give him custody of his minor children.
District Magistrate; Magistrate of the First Class; or Sub-divisional Magistrate can issue search
warrants under this section. The female rescued in such search is a minor the custody should
be given to the father or guardian. In the case of a girl above 18 years, she should be handed
over to her husband.
General Provisions Relating to Searches
Section 99: Direction etc., of Search Warrants
 The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 shall apply to the Search
warrants issued under sections 93, 95 or 97.
Section 100: Person in charge of closed place to allow search.
1. To grant a right to free entry when searching closed premises.

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 2. To guarantee that searches are conducted fairly and impartially in the presence of two
impartial witnesses.
3. To offer a list of the items that are found once such a search is conducted.
4. section 100 disables a clause that allows the owner of the property to see the entire
search process.
5. This exercise’s main goal is to make sure that the police aren’t concealing anything.
Procedure in case of body/personal search
A person may be searched if there is a reasonable suspicion that they are concealing something
on their person or body. If the subject is a woman, a female officer must search in a dignified
manner. When a person is searched, a list of everything taken into possession must be made,
and a copy must be given to the person being searched.
Independent Witnesses
1. Two or more independent witnesses who are respectable persons in the society shall be
made witness to such search procedure.
2. The object of the same is to ensure public confidence and fair procedure while the
search takes place.
3. Such witnesses shall be independent, uninterested, unprejudiced persons.
4. Such persons are to be selected by the officer searching.
5. Non-compliance with the provisions of Section 100(4) may be an irregularity not
affecting the legality of the proceedings, but each case will have to be judged on its own
merits.
Refusal to attend and witness a search
If a person neglects or refuses to attend the search or witness it, the same shall amount to an
offence under section 187 of the IPC.
Section 102: Power of Police officer to seize certain property.
The phrase “seize” refers to physically taking ownership, such as when seizing moving
property. according to Section 102, seizing a person’s bank accounts and lockers does not
constitute a seizure.
Scope
1. There must be an occasion for the Police Officer to seize any property under section
102, and such occasion may arise in the following cases:
2. If the property is stolen; or
3. It is suspected to be stolen; or
4. Such property has a direct link with the commission of crime
Report of Seizure

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The police officer may inform his superior of the seizure if he is working at a police station
with a subordinate. A report of a seizure must be forwarded to the magistrate by the police
officer.
Leaving the property on executing bond
In the following cases the property so seized may be left with any person on executing a bond
to produce the property at a given time and date before the Court:
1. When the property cannot be conveniently transported to the Court; or
2. When there is difficulty in securing proper accommodation for the custody of the
property; or
3. Where continued retention of the property in police custody may not be useful for
investigation.
Conclusion
The main objective of any country irrespective of the ideology it follows is to protect its
citizens’ rights to property, life and liberty. To protect these rights a law should be there and the
law should be clear. Part VII of the criminal procedure code clearly explains the process to be
followed while doing an investigation and the process to compel a person to produce things.
The power of the Magistrate to issue summons and search warrants protecting the rights of the
accused is mentioned in sections 91 to 105 of the Criminal Procedure Code.

Q.7. Explain the Provisions relating to trial of summons cases by Magistrate under
criminal Procedure Code, 1973. [15]
Ans. Introduction
“Summon” is a document that commands a person to whom it is served to appear before the
court and to answer the complaint made against him. Summon is issued by the Magistrate to
the accused under section 204(1) (a) of Cr.PC, 1973. “Summon case” means a case relating to
an offence, not being a warrant case. Summon cases can be referred from the definition of the
warrant case i.e., offences punishable with death, imprisonment for life and imprisonment for
the terms exceeding two years called as warrant case. So summon cases are those in which
punishment will not exceed imprisonment for two years. It can be said that summon cases are
not of serious nature, so it needs to be decided speedily, without dispensing the requisites of
the fair trial. The procedure to deal with such matter provided in section 251 to 259 of Cr.P.C,
1973 which is not as serious/formal as other trials (Session trial, warrant case instituted on the
police report and warrant cases instituted otherwise than on police report).
The main emphasis in the present article is on the procedure of the summon cases. General
steps of a procedure in summon case is same as other trials, but this trial is less formal for the
speedy remedy.
Procedure of trial in summon-cases
Explanation of the particulars of the offence

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Section 251 provides that it is not mandatory to frame charges but the section does not dispense
with the explanation of the particulars of the offence when accused is brought or appear before
the Court. This is done to make the accused cognizant for the allegations made against him. If
in case unable to convey the particulars than this will not vitiate the trial and it will not lead to
the prejudice with the accused as this irregularity is remediable under section 465 of the code.
Under section 251 courts shall ask the accused whether the accused pleads guilty, and section
252 and 253 needs to comply for conviction on such plea of guilty.

Conviction on plea of guilty

Section 252 and 253 provides conviction on the plea of guilty. Section 252 provides plea of
guilty in general and section 253 provides plea of guilty in case of the petty cases. In case
accused plead guilty, the answer is affirmative than in accordance with law court will record
the plea in the exact words of the accused on the basis of which accused can be convicted on
the Court’s discretion. If not affirmative than the court needs to proceed further with Section
254. If the accused plead guilty, and the charges against him do not constitute any offence than
mere plea will not amount to the conviction of the accused. As the magistrate has the discretion
to convict on the plea or not, if on plea the accused is convicted than the magistrate shall
proceed according to section 360 otherwise hear the accused on the question of sentence and
sentence him according to law. If the plea of guilty is not accepted than magistrate shall proceed
according to section 254.
Procedure if the accused not convicted on plea
Section 254 provides about both prosecution and defence case if the accused not convicted on
plea under section 252 and 253.
Prosecution case
The magistrate will hear the accused and take all the evidence. In the hearing, the prosecution
will be given chance to open its case by putting facts and circumstances which constitute the
case and by revealing the evidence which he relied upon to prove the case. The magistrate on
the application of the prosecution, serve summon to any witness to attend and to produce any
document or thing. The magistrate will prepare the memorandum of the evidence according to
section 274. Same as other trials in summon cases also the magistrate will comply with section
279 i.e., interpretation of evidence to the accused and 280 i.e., recording of the demeanour of
the witnesses.
Hearing of the defence: – (Defence Case)
After the prosecution evidence under 254 and examination of defence under section 313, in the
continuance of this, the court will proceed with the defence hearing under section 254(1). In
the hearing of the defence means accused will be asked for accused say against the prosecution
evidence. Failure of hearing of the accused in any case will amount to the fundamental error in
the criminal trial and it cannot be cured under section 465. Evidence produced by the accused
will be recorded in the same manner as in case of prosecution under section 274, 279, 280.
After the submission of the evidence of the defence, he will be allowed to submit his arguments
under section 314.

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Acquittal or conviction
After recording the evidence under 254 the magistrate will acquit the accused if he finds the
accused not guilty. If the accused is guilty than Magistrate shall proceed according to Section
360 or 325 otherwise, sentence him according to the law.
Non-appearance or the death of the complainant
According to section 256 on the date fixed for the appearance of the accused non-existence of
the complainant will empower the court to acquit the accused unless the court has the reason
to adjourn the case to some other day. Section 256(1) is also applicable in case of the death of
the complainant. In case the representative of the dead complainant does not appear for 15 days
where the defendant appeared, the defendant can be acquitted held by the Supreme Court.
Discharge in case of Summon cases
In summon cases instituted otherwise than the complaint Section 258 authorize the first-class
Magistrate, with the prior sanction of the Chief Judicial Magistrate, to stop the proceeding at
any stage. Therefore if he stops the proceeding ‘after record of the evidence’ than it is the
pronouncement of a judgment of acquittal, and in case stops ‘before the record of the evidence’
it is released which has the effect of discharge.
It is controversial that in summon case instituted on complaint Magistrate do not have any
power of dropping of the case even if he has no sufficient ground to proceed against the
accused. This is because if the Magistrate does so then he will recall his own order. Supreme
Court said that the issue of process is interim order of the Magistrate, not the judgment so it
can be recalled. No provision is required to empower the magistrate to drop the case in such
circumstances. In summon cases on complaint Magistrate cannot discharge, review and recall
the order of the issue of the process. There is no dropping of the case, the trial court has to
conclude the trial. In summon cases the Magistrate of the trial court has no power to drop the
proceeding in the absence of such provision in the law. A person can approach the High Court
under section 482 of Cr.PC in such circumstances. There is no provision of discharge in
summon cases instituted on complaint accused will be either convicted or acquitted.
Analysis
The trial of the summon cases is less formal than other trial procedure just for the speedy
remedy. Therefore the Section 258 which does not empower the Magistrate to drop the case,
even in the absence of sufficient ground is somehow prejudice to the accused. Court’s opinion
in the K.M. Matthew case was that the Magistrate has the implied power to drop the case if the
allegation against accused does not prove the commission of any crime. In various judicial
pronouncements, it has dissented. In Arvind Kejriwal case Supreme Court held law does not
specifically empower Magistrate in regard to dropping of the case under 258 and passed the
case to the high court to deal with it under section 482. But the point needs to be considered
that the High court also again need to look into the case to find out whether there is any
sufficient ground to proceed against the accused, all this will impede the main objective of the
summon case i.e. speedy trial. Though this matter was addressed before the apex court in
various cases, it must be scrutinized again to keep the fair trial and the right of the accused out
of jeopardy in such circumstances.

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Q.8. Discuss about the provisions of proclamation and attachment under the code of
Criminal Procedure. [10]
Ans. Introduction
As the appearance of person is needed during the trial proceedings, under chapter VI of the
Code of Criminal Procedure, 1973 the provisions regarding processes to compel the appearance
of an accused is given. Proclamation means an important public announcement.
Under the part C of the chapter, provision regarding proclamation and attachment has been
given.
1. Proclamation For Person Absconding
As per section 87 of the Code, a person who wilfully neglects the summons for the trials
without a reason before the court, the court can issue a warrant of arrest for that person. Here,
the cases in which such warrant of arrest has been issued, there are reasons to believe that the
accused may abscond. To avoid the same from happening the court has the authority to
publish a written proclamation which would require the person to appear before the court or
the court may attach his property. This means that if the accused does not appear before the
court, the attached property would be at the disposal of State government and the state
government can sell that property.

A proclamation can be made by a public hearing at a place the person resides, at his house
where he reside and a copy of proclamation to be affixed. However, a proclamation can even
be published in the newspaper being circulated at the area the person resides.

This would naturally put pressure on the accused to appear before the court during the trial
proceedings to avoid disposal of his property. Section 82 to 86 discuss the provisions related
to such proclamation and attachment of property of the accused.

Section 82 of the Code of Criminal provides for the publication of proclamation for the
person absconding, it states that:

i. If any Court has reason to believe (whether after taking evidence or not) that
any person against whom a warrant has been issued by it has absconded or is
concealing himself so that such warrant cannot be executed, such Court may
publish a written proclamation requiring him to appear at a specified place and
at a specified time not less than thirty days from the date of publishing such
proclamation.

ii. The Court may also, if it thinks fit, direct a copy of the proclamation to be
published in a daily newspaper circulating in the place in which such person
ordinarily resides.

iii. A statement in writing by the Court issuing the proclamation to the effect that
the proclamation was duly published on a specified day, in the manner
specified in clause (i) of sub-section (2), shall be conclusive evidence that the

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 requirements of this section have been complied with, and that the
proclamation was published on such day.

iv. Where a proclamation published under sub-section (1) is in respect of a person

accused of an offence punishable under section 302, 304, 364, 367, 382, 392,
393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the
Indian Penal Code (45 of 1860), and such person fails to appear at the
specified place and time required by the proclamation, the Court may, after
making such inquiry as it thinks fit, pronounce him a proclaimed offender and
make a declaration to that effect.

v. The provisions of sub-sections (2) and (3) shall apply to a declaration made by
the Court under sub-section (4) as they apply to the proclamation published
under sub-section (1).[1]
The term, abscond here does not merely mean to leave a place but rather its etymological
sense, to hide oneself. In the case of N.M.V. Vellayappa Chettiar v. Alagappa Chettiar, it
has been elaborated that if a person had gone to a distant place before the issue of a warrant,
he cannot be said to be absconding to evade the warrant execution.

Since the section violates the human rights of the accused to some extent, the amendment Act
has provided that a person can be declared as a proclaimed offender in case he has committed
a serious crime and does not present himself before the court even after the proclamation
under section 82 sub-section (4). The term, 'reason to believe' here is used in reference that
the magistrate must be subjectively satisfied that the person has absconded.

2. Attachment Of Property Of Person Absconding

A person against whom a proclamation has been issued by the court under Section 82, his
property can be attached as per Section 83 of the Code of Criminal Procedure, 1973. This is
done to compel the person to appear before the court on trial proceedings.

Section 83 provides that, if the court has a reason to believe that the proclaimed person is
either disposing the immoveable property or move it out of court's jurisdiction, then the court
may attach the property of the proclaimed person. It can be done by the order of attachment
under form 7 or form 6 of second schedule, the Code of Criminal Procedure.

Further, in sub-section 3 it has been provided that the movable property can be attached by
seizing, appointing a receiver, or as the court deems fit. In case the property to be attached is
immovable, it will be attached by the collector of the District of location of the property.
Also, if the property is perishable, it would be sold off on the order by the court and the funds
received would be used as the court directs. It has to be kept in mind that there will be a
receiver appointed as per the provisions prescribed in the Code of Civil Procedure, 1908.[3]

In the case of Devendra Singh Negi v. State of U.P, it was observed that the attachment of
property as per section 83 cannot be done before the period of 30 days from the issuing of

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proclamation for person absconding under section 82.

The Constitution of India under Article 300A provides right to property to a person. Right to
property is not a fundamental right but rather a statutory right. Article 300 A affirms that no
person shall be deprived if his property save by the authority of law. The attachment of
property is as per the Code of Criminal Procedure provides and it may make it difficult for
the accused but it does not infringe any rights of the accused.

Further under section 84 of the Code of Criminal Procedure, if any person other than the
proclaimed person is aggrieved by the attachment, the claims and objection to attachment has
been provided. It is provided that if the claimant or objector has any interest in the attached
property and he objects against the attachment order within 6 months of attachment, that
property is not liable to be attached under section 83 and it shall be inquired. In case the
claimant or objector dies, his legal representative can carry on with the claim or objection.[5]

3. Release, Sale And Restoration Of Attached Property

Section 85 of the code provides for the release sale and restoration of attached property. If the
proclaimed person appears before the court as per the proclamation, his property is released
and if not so then the property remains under attachment for 6 months and post this period, it
is sold by the State Government after a period of 2 years.

Here, the property attached is given to the State Government because the property is always
under the absolute control of the state government. Further, if a person within the period of 2
years from attachment satisfies the court that he was not absconding, the costs incurred
during the attachment are delivered back to the person.[6]

Conclusion
In the light of the above discussions, it can be concluded that the legal repercussion of
absconding comes in the form of proclamation followed by attachment of property of the
person accused. It can be observed that the attachment of property is a last resort for the court
in order to compel the person accused to appear before the court.

But the presence of the accused is mandatory in the court as he needs to be there to carry on
the trial proceedings. A person who intentionally absconds the trial proceedings is declared as
a proclaimed offender. And further in case the accused does not appear before the court post
attachment of property the court has the authority to dispose the property attached.

Issue of arrest is the sine qua non of any proceeding of the court under section 82 and further,
without the completion of 30 days periods from the proclamation, no attachment of property
can be done. Chapter VI of the Code of Criminal Procedure, 1973 extensively provides for
proclamation and attachment of property of the person absconding. It is a legal obligation of
both the parties to be present during the trials for a fair trial.

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Module 5
Q.9. Explain the conditions requisites for initiation of proceedings before the Magistrate.
[10]
Ans. INTRODUCTION
The Indian legal system has a well-defined Conditions Requisite For The Initiation Of Criminal
Proceedings. Sections 190 to 199 of the Code of Criminal Procedure (CrPC) outline various
aspects of when and how legal action can be taken against individuals for alleged criminal
offenses. In this blog, we will delve into these sections, breaking down the conditions and
requirements for the commencement of proceedings.
SECTION 190 – COGNIZANCE OF OFFENSES BY MAGISTRATES
Magistrates of the First and Second Class specially empowered can take cognizance of offenses
in three ways :-
 Upon receiving a complaint detailing the offense.
 Based on a police report.
 If they receive information from a non-police source or have knowledge of the offense.
A Chief Judicial Magistrate can empower a Second-Class Magistrate to take cognizance of
specific offenses within their jurisdiction.
SECTION 191 – TRANSFER ON APPLICATION OF THE ACCUSED
When a Magistrate takes cognizance based on their knowledge (Section 190c), the accused
must be informed of the right to request the case be transferred to another Magistrate. If the
accused objects, the Chief Judicial Magistrate can specify another Magistrate for the case.
SECTION 192 – MAKING OVER OF CASES TO MAGISTRATES
Chief Judicial Magistrates can transfer cases for inquiry or trial to subordinate competent
Magistrates. Magistrates of the First Class can also make such transfers based on orders from
the Chief Judicial Magistrate.
SECTION 193 – COGNIZANCE OF OFFENSES BY COURTS OF SESSION
Courts of Session can only take cognizance of offenses if a Magistrate commits the case to
them as per the CrPC or other relevant laws.
SECTION 194 – ADDITIONAL AND ASSISTANT SESSIONS JUDGES
Additional and Assistant Sessions Judges can try cases transferred to them by the Sessions
Judge or directed by the High Court through special orders.
SECTION 195 – PROSECUTION FOR CONTEMPT, OFFENSES AGAINST PUBLIC
JUSTICE, AND OFFENSES RELATING TO DOCUMENTS GIVEN IN EVIDENCE
This section restricts the initiation of proceedings for certain offenses, including contempt of
lawful authority, offenses against public justice, and document-related offenses. Such
proceedings generally require written complaints from specific authorities or the court itself.

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SECTION 195A – PROCEDURE FOR WITNESSES IN CASE OF THREATS
This section allows witnesses or any person to file complaints related to offenses under
section 195A of the Indian Penal Code.
SECTION 196 – PROSECUTION FOR OFFENSES AGAINST THE STATE
No Court can take cognizance of offenses against the State or criminal conspiracy without the
previous sanction of the Central or State Government.
SECTION 197 – PROSECUTION OF JUDGES AND PUBLIC SERVANTS
Judges, Magistrates, and certain public servants accused of offenses during the discharge of
their official duty can only be prosecuted with the prior sanction of the respective Government
authorities.
SECTION 198 – PROSECUTION FOR OFFENSES AGAINST MARRIAGE
Offenses against marriage under Chapter XX of the Indian Penal Code can only be
prosecuted when a complaint is made by the aggrieved party or authorized persons. Special
provisions apply to cases involving the Armed Forces.
SECTION 198A – PROSECUTION OF OFFENSES UNDER SECTION 498A INDIAN
PENAL CODE
Section 498A of IPC (cruelty to married women) can be prosecuted upon a police report or a
complaint by the aggrieved party or authorized family members.
SECTION 198B – COGNIZANCE OF OFFENSE IN MARITAL RELATIONSHIPS
Offenses under section 376B (sexual intercourse by a man with his wife under 18 years) in
marital relationships require a complaint filed by the wife.
SECTION 199 – PROSECUTION FOR DEFAMATION
 Courts can only consider offenses in Chapter XXI of the Indian Penal Code when a
complaint is filed by the aggrieved person.
 Exceptions exist for individuals under 18, those with disabilities, and women in specific
circumstances.
 Offenses against high-ranking officials can be pursued without the case being
committed to a Court of Session if the Public Prosecutor files a written complaint.
 The complaint must include essential details of the offense and be filed within six
months.
 Public Prosecutors need prior approval from relevant authorities to file a complaint.
 Victims still have the right to approach a Magistrate for their complaint if needed.
CONCLUSION
Understanding these legal provisions is crucial for anyone involved in the Indian legal system.
These sections ensure that criminal proceedings are initiated in a fair and just manner,

24 -Rashi Waghmare
protecting the rights of both the accused and the complainant. It’s essential to adhere to these
procedural requirements to maintain the integrity of the criminal justice system in India.

Q.10. Discuss the procedure of filing a Private complaint before Magistrate under the
Criminal Procedure Code. [15]
Q.11. Complaint to Magistrate. [Short Note] [5]
Ans. Introduction
Complaint has been defined under Section 2(d) of the Code of Criminal Procedure, 1973
(CrPC) as any allegation made orally or in writing to a Magistrate, with a view to his taking
action under this Code, that some person, whether known or unknown, has committed an
offence. It does not include a police report.
Explanation appended to Section 2(d) of CrPC provides that a report made by the police officer,
after investigation, if discloses the commission of a non-cognizable offence, it shall be deemed
to be a complaint.
In deemed complaint the police officer by whom such report is made shall be deemed to be the
complainant. It must be however kept in the mind that if police officer takes the permission
before the investigation and finds it a non-cognizable offence then it is not a deemed complaint.
Essentials of the complaint
1. The complaint must relate to the commission of an offence.
2. The complaint may be either written or oral.
3. The complaint must be made to the Magistrate.
4. The complaint can be made by any person whether known or unknown.
5. The complaint must be made with a view to taking action under the CrPC.
6. Complaint is one of the modes whereby a Magistrate can take cognizance of an
offence.
7. A mere statement to a Magistrate by way of information, without asking the
Magistrate to take action, is not a complaint.
To whom a complaint can be made?
Section 190 (1) of CrPC empowers Judicial Magistrate of First Class or Judicial Magistrate
Second Class specifically empowered by the Chief Judicial Magistrate to take cognizance upon
receiving a complaint of facts which constitute an offence.
Complaints to Magistrate
Section 200-203 discusses the provision of Complaints to Magistrate.
Section 200: Examination of complainant
 The Magistrate, taking cognizance of the offence, must examine the complainant on
oath and his witnesses, if any.
 The substance of such an examination shall be reduced to writing.

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  It shall be signed by the complainant, witnesses, if any and by the Magistrate.
 The Magistrate need not examine the complainant and his witnesses:
o If a public servant acting or purporting to act in the discharge of his official
duties or a Court has made a complaint in writing; or
o If the Magistrate makes over the case for inquiry or trial to another Magistrate
under Section 192.
 It is provided that if the Magistrate makes over the case to another Magistrate under
Section 192 after examining the complainant and the witnesses, the latter Magistrate
need not re-examine them.
Section 201: The procedure by a Magistrate who is ineligible to take cognizance of the
case
If the complaint is filed with a Magistrate who is unable to take cognizance of the offence, then
the Magistrate shall,
1. If the complaint is submitted in writing, it can be returned to the complainant, and the
party can be asked to present the complaint in the competent court.
2. If the complaint is not submitted in writing, the Magistrate has the authority to refer the
complainant to the appropriate Court.
In Ramadhar Singh R.D. Singh v. Smt. Ambika Sahu (2016), the court declared that, without
getting into the merits of the case, what must be considered is the appeal and the need for the
legislation under which the case has been registered under Section 201 CrPC.
Section 203: Dismissal of Complaint
 If after considering the statement on oath and inquiry, if any conducted under Section
202, the Magistrate thinks there is no sufficient ground for proceeding, he shall dismiss
the complaint.
 Magistrate shall record the reason for dismissing such complaint.
 The expression sufficient ground used in this section means the satisfaction that a prime
facie case is made out against the person accused of committing an offence and not
sufficient ground for the purpose of conviction.
 These proceedings of the Magistrate will not be set aside merely on the ground that he
is not empowered to do so.
In Santokh Singh v. Geetanjali Woolen Pvt. Ltd. (1993), the Court ruled that just because a
complaint has been dismissed by a Magistrate under Section 203, it does not preclude a second
complaint based on the same facts and reasons from being heard. However, it should be
considered only in exceptional instances.
Conclusion
We can conclude that when a written complaint is submitted to the court, the Magistrate
registers it after reviewing it. Following registration, the complainant’s statement is recorded
under Section 200 of the Criminal Procedure Code, 1973, on the same day. The case is set for

26 -Rashi Waghmare
recording the evidence of witnesses under Section 202 of the Code of Criminal Procedure on
any other day. After recording the testimony of the witness or witnesses under Section 202
CrPC, the matter is set for arguments on summons. After hearing the arguments during the
hearing, the matter has been scheduled for the next summons. If the Magistrate determines or
believes that evidence relevant to the offence is contained in the complaint following Sections
200 and 202 of the Code of Criminal Procedure, then the Magistrate issues the process against
the accused under Section 204 of the CrPC.
If, on the other hand, the Magistrate is satisfied after reviewing evidence under Sections 200
and 202 CrPC that no prima facie offence has been shown and that there is no adequate reason
for proceeding, then he dismisses the complaint under Section 203 CrPC.

Q.12. Discuss the Provisions relating to security for keeping peace and for good behaviour
under the Criminal Procedure Code,1973. [15]
Ans. Introduction
“Prevention is better than cure” is a proverb which is in common parlance and well known.
Sir William Blackstone believed that ‘‘preventive justice is preferable in all respects to
punishing justice”. Rather than merely being a popular quote, this proverb is deeply embedded
in various legal systems as well. Indian criminal law is not completely unwary of the
jurisprudential norm of preventive justice. Substantive law states that crime is to be prevented,
and procedural law provides a mechanism for the same. The Code of Criminal Procedure, 1973,
has enacted several provisions, as seen in the previous chapters, for investigation, inquiry, and
trial with regard to every crime alleged to have been committed. Furthermore, in order to
prevent crime, it was essential to include a few preventive measures. Provisions were also
enacted in the form of other precautionary measures for the protection of society as a whole.
These matters are contained in Sections 106 to 124 and Sections 129 to 153. Part VIII seeks to
create a stable society by enforcing the aforementioned proverb and ensuring peace and good
behaviour. Security means providing a guarantee consistent with the court’s satisfaction that a
certain form of conduct is to be upheld for a specified period by a certain person who is
concerned with such a thing.
SECURITY FOR KEEPING PEACE AND FOR GOOD BEHAVIOR (SECTION 106-
124)
SECTION 106 – SECURITY FOR KEEPING PEACE ON CONVICTION
Section 106 of the Criminal Procedure Code enables the court to order individuals convicted
of specific offenses, or abetting such offenses, to execute a bond for maintaining peace. The
court, which may be a Session Court or a Judicial Magistrate of the First Class, can require this
bond, with or without sureties, for a period not exceeding three years. This action is taken if
the court deems it necessary to ensure the individual’s peacekeeping behaviour. Importantly, if
the conviction is later set aside on appeal or otherwise, the bond becomes void.
SECTION 108 – SECURITY MEASURES AGAINST DISSEMINATION OF
SEDITIOUS MATTER

27 -Rashi Waghmare
Under Section 108, an Executive Magistrate can take action when they receive information
within their local jurisdiction about individuals disseminating seditious or obscene material.
This section applies to individuals who-
 Disseminate or attempt to disseminate material punishable under Section 153B or
Section 295A of the Indian Penal Code.
 Disseminate matter concerning a judge that amounts to criminal intimidation or
defamation under the Indian Penal Code.
The magistrate can require these individuals to show cause as to why they should not be ordered
to execute a bond for good behaviour, not exceeding one year, if the magistrate deems it
necessary to prevent the repetition of the offense.
SECTION 109 – ENSURING GOOD BEHAVIOR FROM SUSPECTED INDIVIDUALS
Section 109 authorizes an Executive Magistrate to demand security for good behaviour from
any person suspected of concealing their presence with the intent to commit a cognizable
offense. The magistrate can require the individual to show cause why they should not be
ordered to execute such a bond for a period not exceeding one year, as determined by the
magistrate.
SECTION 110 – SECURITY FOR GOOD BEHAVIOR FROM HABITUAL
OFFENDERS
Under Section 110, an Executive Magistrate has the authority to demand security for good
behaviour, not exceeding three years, from individuals who fall into various categories,
including-
 Robbers, thieves, forgers, or housebreakers.
 Receivers of stolen property with knowledge of its theft.
 Habitual offenders aiding in concealing or disposing of stolen property.
 Those habitually involved in offenses like kidnapping, abduction, extortion, cheating,
mischief, or certain offenses under the Indian Penal Code.
 Individuals habitually involved in offenses that breach the peace, provided they are
considered desperate and dangerous.
This section’s primary objective is prevention, not punishment of offenses. It is used to secure
future good behaviour and cannot be used to punish past offenses.
PROCEDURE FOR TAKING SECURITY FOR KEEPING PEACE AND GOOD
BEHAVIOR
The procedure for implementing these provisions involves several steps:
 Order of Security to be in Writing – The magistrate must issue a written order
specifying the bond amount, the need for sureties, and explain the order to the
concerned person (Section 111).

28 -Rashi Waghmare
  Procedure When the Person Is Not Present in Court – If the person is absent, the
court may issue summons or a warrant for their appearance. Immediate arrest may occur
if it’s necessary to prevent a breach of peace (Section 113). Such summons or warrants
are accompanied by the magistrate’s order (Section 114). Section 115 empowers the
magistrate to dispense with the person’s attendance if sufficient cause exists.
 Inquiry as to Truth of Information (Section 116)- Upon the person’s appearance or
that of their pleader, the magistrate conducts an inquiry into the truth of the information
that led to the action. This inquiry must be completed within six months, unless the
magistrate directs otherwise. The magistrate can also detain the person in custody if
necessary to prevent a breach of peace [Section 116(3)].
 Steps After Completion of Inquiry – If the inquiry proves that executing a bond is
necessary for maintaining peace and good behaviour, the magistrate issues an order
under Section 117. The person is directed to execute a bond with or without sureties.
However, surety is mandatory if the person is a minor. If the inquiry finds no need for
a bond, the person is discharged (Section 118).
PROCEDURE IF THE PERSON DEFAULTS IN PROVIDING SECURITY
If an individual ordered to provide security under Section 106 or 117 fails to do so, they may
be committed to prison. If they are already in prison, they will be detained further if –
 They fail to provide security by the specified date, or
 They breach the bond they previously executed.
Imprisonment continues until the individual provides the required security or until the specified
period expires. If releasing the person doesn’t pose a hazard to society, the District Magistrate
or Judicial Magistrate (in cases under Section 106) may discharge the individual under Section
123.
These provisions serve the vital purpose of maintaining public order, ensuring good behaviour,
and preventing potential disturbances by requiring individuals to provide security and adhere
to the law.
Case Laws
Navin v. State of UP( 2021)
Herein it was held that the words habit and habitual have been defined, and the word habit has
a close correlation with the character of a person when it comes to invoking provisions related
to keeping peace and good behaviour. It was also held that the words “habit and habitually”
have been used in the sense of depravity of character as evidenced by the frequent repetition or
commission of the offences mentioned in the Section.
Abdui Ghafoor v. Emperor(1943)
In this case, it was held that the words “conceal presence” in Section 109 are wide enough to
cover not only the concealment of bodily presence in a house or grove, etc., but also the
concealment of appearance by wearing a mask or covering the face, or disguising by wearing
a uniform, etc.

29 -Rashi Waghmare
Conclusion
Sections 109 and 110 of the code personify pre-emptive action against crime that is yet to
happen, thereby eliminating any harm that would occur in the future and creating a narrative
of safety. Being a preventive measure, this provision also has certain social implications, as if
they aren’t used fairly, these provisions can result in an arbitrary exercise of judicial discretion.
Hence, it is important to remember that this provision is not punitive by any means and cannot
be exercised in a manner that causes prejudice to any Section of the society.
Module 10
Q.13. Explain the Provisions relating maintenance of wife under Criminal Procedure
Code, 1973. [15]
Ans. Introduction
The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX
of the Code of Criminal Procedure deals with provisions for maintenance of wives, children
and parents. ‘Maintenance’ in general meaning is keeping something in good condition.
‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly to a
former wife, husband or partner, especially when they have had children together. It is the duty
of every person to maintain his wife, children and aged parents, who are not able to live on
their own.
Object of Proceeding
The proceedings are not punishable in nature. The main objective of Chapter IX of Cr.PC is
not to punish a person who is not maintaining those whom he is bound to maintain. The main
objective is to prevent homelessness by way of procedure to provide a speedy remedy to those
who are in pain. It does not make any distinction between persons belonging to different
religions or castes. It has no relation to the personal laws of parties.
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming and granting
maintenance:
1. Sufficient means for maintenance are available.
2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain himself/herself.
4. Quantum of maintenance depends on the standard of living
Order for maintenance of wives and children (Section 125 of Cr.PC)
Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”.
According to Section 125(1), the following persons can claim and get maintenance:
1. Wife from his husband,
2. Legitimate or illegitimate minor child from his father,
3. Legitimate or illegitimate minor child (physical or mental abnormality) from his father,
and

30 -Rashi Waghmare
 4. Father or mother from his son or daughter.
A wife can claim and get maintenance from her husband in the following conditions:
 She is divorced by her husband, or
 Obtained divorce from her husband, and
 She has not remarried, and
 She is not able to maintain herself.
Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act
(Muslim Women Protection of rights on Marriage Act) for them.
A wife cannot claim and get maintenance from her husband in the following conditions:
 Wife living in adultery, or
 Refuses to live with husband without any valid reasons, or
 Living separately by mutual consent.
Under Section 125(l)(a) of the Code, maintenance allowance cannot be granted to every wife
who is neglected by husband or whose husband refuses to maintain her, but can only be granted
to a wife who is unable to maintain herself but not a wife who is maintaining herself with some
difficulty.
By the phrase 'unable to maintain herself', it is not meant that she should be absolutely destitute
and should be first on the street, should beg and be in tattered clothes and then only she will be
entitled to move an application under Section 125 of the Code.
Section 125 of the Code gives effect to the fundamental and natural duty of a man to maintain
his wife. Section 125 provides a statutory right and cannot be affected by personal law. The
right conferred upon the wife by the provisions of Section 125 is independent of personal law
and to claim protection of Mohammedan Law in derogation of the statutory provisions of the
Code is not permissible. A wife is entitled to maintenance under Section 125, irrespective of
the fact that she is not entitled to maintenance under the personal law.
According to Section 125(2), If a court order for such allowance for maintenance or interim
maintenance and expenses of the proceeding, then it should be payable from the date of the
order or if so ordered, then it shall be payable from the date of application for maintenance and
expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without sufficient
cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the
person again fails after the execution of the warrant, then the punishment of imprisonment for
a term which may extend to one month or until payment of sooner made is awarded.
In Mohd. Ahmed Khan v. Shah Bano Begum, it is declared that a Muslim husband having
sufficient means must provide maintenance to his divorced wife who is unable to maintain
herself. Such a wife is entitled to the maintenance even if she refuses to live with the Muslim
husband because he has contracted another marriage within the limits of four wives allowed to
him by Quran. The Bench of the Supreme Court declared that a Muslim divorced woman who

31 -Rashi Waghmare
cannot maintain herself is entitled to maintenance from her former husband till the time she
gets remarried. They rejected the plea that maintenance is payable for the iddat period only.
In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan, the Supreme
Court held that maintenance can be allowed to the wife when her husband is impotent.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of maintenance depends
on the standard of living. For example- If any issues raised in a rich family, then demand for
maintenance will be more as compared to poor family according to their standard of living in
a prior life.
In simple words, the Court should also make sure that whether maintenance granted is justified
according to the status of a family.
Procedure for maintenance
Section 126 of Cr.PC deals with “Procedure for maintenance”. This Section says the following:
 Proceeding under Section 125 may be taken in the following district:
1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
 Evidence to be taken in the presence of a person against whom maintenance is to be
ordered.
 If a person is wilfully avoiding summons, then ex-parte evidence is taken in that case.
Alteration in allowance
Alteration in allowance means an order to increase, decrease or remove/cancel the allowance
which was ordered by the Magistrate under Section 125.
According to Section 127(1), if a magistrate ordered to give allowance for maintenance under
Section 125 according to the conditions of parties at that time, but if the present conditions of
parties have changed, then he can also order to alter the allowance.
According to Section 127(2), Magistrate shall cancel or revoke any order given under Section
125 by him, if it appears that it should be cancelled in consequences of any decision of the
competent Civil Court.
According to Section 127(3), where an order has been made in favour of women under Section
125, then the magistrate can cancel the order in the following case:
1. If a woman is remarried after divorce.
2. If a woman has taken allowance under any personal laws after divorce.
3. If a woman has voluntary leave her right to maintenance.

32 -Rashi Waghmare
According to Section 127(4), the Civil Court shall take into account the sum which has been
paid to such person as monthly allowance for maintenance and interim maintenance under
Section 125 at the time of making any decree for the recovery of any maintenance or dowry.
Enforcement of order of maintenance
Section 128 deals with “Enforcement of order of maintenance”. According to this Section, the
following are the conditions for enforcement of the order of maintenance:
 Copy of order under Section 125 is given to that person free of cost in whose favour it
is made. In case the order is in favour of children, then the copy of the order will be
given to the guardian of children.
 If any Magistrate has made an order under Section 125, then any Magistrate of India
can enforce this order where that person lives who have to give maintenance.
 The Magistrate has to satisfy two conditions before enforcement of order:
1. Identity of parties, and
2. Proof of non-payment of allowances.
Conclusion
Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the
divorced wife, children and aged parents. It is made to protect them from unusual livelihood.
Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of
Cr.PC, there are various provisions given related to maintenance like who is entitled to
maintenance, essential conditions for granting maintenance, Procedure of maintenance,
Alteration of the previous order, Enforcement of order of maintenance etc.

Q.14. Explain Provisions relating maintenance under Criminal Procedure Code, 1973.
Ans. Introduction
The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX
of the Code of Criminal Procedure deals with provisions for maintenance of wives, children
and parents. ‘Maintenance’ in general meaning is keeping something in good condition.
‘Maintenance’ in legal meaning is money (alimony) that someone must pay regularly to a
former wife, husband or partner, especially when they have had children together. It is the duty
of every person to maintain his wife, children and aged parents, who are not able to live on
their own.
Order for maintenance of wives, children and parents
Section 125 of Cr.PC deals with “Order of maintenance of wives, children and parents”. In this
Section, it is given the name of parties who are entitled to get maintenance, essential ingredients
to claim and get maintenance and order of the first-class magistrate.
In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a judgement
favouring maintenance given to an aggrieved divorced Muslim woman.

33 -Rashi Waghmare
Who can claim and get maintenance?
Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”.
According to Section 125(1), the following persons can claim and get maintenance:
 Wife from his husband,
 Legitimate or illegitimate minor child from his father,
 Legitimate or illegitimate minor child (physical or mental abnormality) from his father,
and
 Father or mother from his son or daughter.
Wife
A wife can claim and get maintenance from her husband in the following conditions:
 She is divorced by her husband, or
 Obtained divorce from her husband, and
 She has not remarried, and
 She is not able to maintain herself.
Note: Muslim wife can also claim maintenance under Cr.PC though they have a separate Act
(Muslim Women Protection of rights on Marriage Act) for them.
A wife cannot claim and get maintenance from her husband in the following conditions:
 Wife living in adultery, or
 Refuses to live with husband without any valid reasons, or
 Living separately by mutual consent.
Legitimate or illegitimate minor child
 Son

‘Minor’ means a person who, under the provisions of Section 3 of the Indian Majority Act,
1875 is deemed not to have attained his majority i.e., above the age of 18 years. Minor Son
(Legitimate or Illegitimate) is entitled to get maintenance under Section 125 of Cr.PC.
 Daughter

If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled to get

maintenance from her father and if she is married, then she is also entitled to get maintenance
from his father but the magistrate has to be satisfied that her husband has not essential and
sufficient means for the maintenance of his minor wife.
 Legitimate or illegitimate abnormal child who has attained majority

If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then
the father of that child has to maintain him and he can claim maintenance on this ground of
abnormality.

34 -Rashi Waghmare
  Father or mother

 Natural father and mother can claim maintenance.

 Mother includes adoptive mother; she can claim maintenance from adoptive son.
 Father can claim maintenance, it is a statutory obligation, this claim cannot be defeated
by pleading that the father failed to fulfil his parental obligation.
 A childless stepmother can claim maintenance.
In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade, Bombay High
Court has held that the father or mother can claim maintenance under Section 125(1)(d) if he
or she is unable to maintain himself or herself. But it is also important that if parents claim
maintenance to their children, children must have sufficient means to maintain their parents
and yet neglects or refuses to maintain the father or mother.
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming and granting
maintenance:
1. Sufficient means for maintenance are available.
2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain himself/herself.
4. Quantum of maintenance depends on the standard of living.
The person who claims maintenance must be unable to maintain himself/herself
It is a very important condition for granting maintenance that a person who is claiming
maintenance must be unable to maintain himself/herself. For example- If a wife is earning well,
then she cannot claim maintenance under this Section. In the case of Abdulmunaf v Salima, it
was held that the wife who is healthy and is sufficiently educated to earn for herself but refuses
to earn from own and claim maintenance from her husband will be entitled to claim
maintenance but that her refusal to earn under the circumstances would disentitle her to get
complete amount of maintenance.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of maintenance depends
on the standard of living. For example- If any issues raised in a rich family, then demand for
maintenance will be more as compared to poor family according to their standard of living in
a prior life.
In simple words, the Court should also make sure that whether maintenance granted is justified
according to the status of a family or not?
Jurisdiction of Magistrates to deal with maintenance proceedings
According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children
or parents, then a Magistrate of the First Class can order such person to make a monthly

35 -Rashi Waghmare
allowance for the maintenance of his wife, children or parents, at such monthly rate as such
Magistrate thinks fit, and to pay the same to such person as the direction of magistrate.
If a minor female child is unmarried, then the magistrate can order to make such allowance,
until she attains her majority. In case a minor child is married and the magistrate is satisfied
that the husband of such minor female child is not possessed of sufficient means, then the
magistrate can order father of the minor female child to make such an allowance for
maintenance.
When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate
can order such person to make a monthly allowance for the interim maintenance of his wife,
children or parents and the expenses of such proceeding which the Magistrate considers
reasonable.
An application for the monthly allowance for the interim maintenance and expenses of
proceeding should be disposed within sixty days from the date of the notice of the application
to such person.
According to Section 125(2), If a court order for such allowance for maintenance or interim
maintenance and expenses of the proceeding, then it should be payable from the date of the
order or if so ordered, then it shall be payable from the date of application for maintenance
and expenses of proceedings.
According to Section 125(3), If any person fails to comply with the order without sufficient
cause, then Magistrate can order to issue a warrant for levying the amount with fines. If the
person again fails after the execution of the warrant, then the punishment of imprisonment for
a term which may extend to one month or until payment of sooner made is awarded.
Procedure for maintenance
Section 126 of Cr.PC deals with “Procedure for maintenance”. This Section says the following:
 Proceeding under Section 125 may be taken in the following district:
1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
 Evidence to be taken in the presence of a person against whom maintenance is to be
ordered.
 If a person is wilfully avoiding summons, then ex-parte evidence is taken in that case.
Alteration in allowance
Alteration in allowance means an order to increase, decrease or remove/cancel the allowance
which was ordered by the Magistrate under Section 125.
According to Section 127(1), if a magistrate ordered to give allowance for maintenance under
Section 125 according to the conditions of parties at that time, but if the present conditions of
parties have changed, then he can also order to alter the allowance.

36 -Rashi Waghmare
According to Section 127(2), Magistrate shall cancel or revoke any order given under Section
125 by him, if it appears that it should be cancelled in consequences of any decision of the
competent Civil Court.
According to Section 127(3), where an order has been made in favour of women under Section
125, then the magistrate can cancel the order in the following case:
1. If a woman is remarried after divorce.
2. If a woman has taken allowance under any personal laws after divorce.
3. If a woman has voluntary leave her right to maintenance.
According to Section 127(4), the Civil Court shall take into account the sum which has been
paid to such person as monthly allowance for maintenance and interim maintenance under
Section 125 at the time of making any decree for the recovery of any maintenance or dowry.
Enforcement of order of maintenance
Section 128 deals with “Enforcement of order of maintenance”. According to this Section, the
following are the conditions for enforcement of the order of maintenance:
 Copy of order under Section 125 is given to that person free of cost in whose favour it
is made. In case the order is in favour of children, then the copy of the order will be
given to the guardian of children.
 If any Magistrate has made an order under Section 125, then any Magistrate of India
can enforce this order where that person lives who have to give maintenance.
 The Magistrate has to satisfy two conditions before enforcement of order:
1. Identity of parties, and
2. Proof of non-payment of allowances.
Conclusion
Chapter IX of the Code of Criminal Procedure is essential for the protection of the rights of the
divorced wife, children and aged parents. It is made to protect them from unusual livelihood.
Maintenance is the duty of everyone who has sufficient means for the same. In this chapter of
Cr.PC, there are various provisions given related to maintenance like who is entitled to
maintenance, essential conditions for granting maintenance, Procedure of maintenance,
Alteration of the previous order, Enforcement of order of maintenance etc.
Q.15. Explain the power of High Court to transfer cases. [10]
Ans. Introduction
The procedure to be mandatorily followed while pursuing a case is briefly dealt with under the
Code of Criminal Procedure, 1973. Chapter XXXI of the Code contains the provisions related
to the transfer of the criminal cases from Section 406 to 411. The main reason behind the
incorporation of transfer of cases is that of delivering justice to people and to achieve the same,
the provisions regarding the right to appeal is also provided. The overburden of pending cases
and appeals results in delayed justice thus, it creates unrest in judicial processes. So to address

37 -Rashi Waghmare
this problem, certain provisions have been brought to transfer the criminal cases from one court
to another. The right of appeal in the Supreme Court is available only in exceptional cases. As
per the Code of Criminal Procedure, the original court of criminal appeal in the High Court.
Transfer of Cases by HC
Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases
and appeals.
Circumstances in which HC may order the transfer of a case or appeal
The High Court has the authority to transfer the cases when it is satisfied that:
 The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian
Constitution cannot be exercised by any of the party to the suit if the case is tried by
any of the courts which is subordinate to it;
 Certain questions pertaining to the present matter in the court are of unusual difficulty;
 The transfer of the appeal or the case is made inevitable by any of the provisions under
the Code;
 The order of transfer will be in the interest of the general convenience of the parties or
witnesses involved in the suit.
Orders that the High Court can pass
The High Court on being satisfied with the presence of the above-mentioned grounds can order
any of the following:
 The offence which is inquired into or tried by any Court subordinate to it be inquired
by any other court which is inclusively under both Section 177 and Section 185 of the
Code is not qualified but is otherwise competent to inquire into or try offences like the
ones which are in question;
 Where a particular case or appeal is pending before any criminal court which is
subordinate to it to any other criminal court which is having equal or superior
jurisdiction in comparison to the High Court;
 The particular case be laid down before the court of Sessions for hearing;
 The particular case or appeal be laid down before the High Court itself.
At whose instance the powers of transfer are exercised
The High Court exercises its power of transfer of cases at the following instances:
 When the lower court submits the report for transfer of an appeal or case to the High
Court;
 Where the interested party lays before the High Court, an application requesting the
transfer of a case or appeal;
 The High Court in its own discretion can transfer a case or appeal if it is satisfied with
the fact that it would be in the best interest of the parties to the suit.

38 -Rashi Waghmare
However, the High Court while transferring a case must be mindful of the fact that no
application of transfer of the case from one criminal court to another is made in the same
sessions division unless an application for the transfer of the case has been made to the sessions
court and the same has been rejected by him.
Procedure to be followed
Sub section 3 to Sub section 5 of Section 407 of the Code of Criminal Procedure lays down the
procedure which has to be followed by the person who is making the application for the transfer
of appeals and cases by him.
 Subsection 3 of Section 407 of the Code provides that the application for the transfer
of cases to the High Court by the applicant shall be made by motion which shall be
supported by an affidavit or affirmation, except in the case where the applicant is the
Advocate General of the State;
 Subsection 4 of Section 407 of the Code provides that where the application for the
transfer of a case or an appeal is made by an accused person, the High Court has the
authority to direct him to execute a bond with or without surety for the payment of any
compensation which may be ordered to him by the court;
 Subsection 5 of Section 407 of the Code provides that every person who makes an
application for the transfer shall give to the public prosecutor in writing, a notice to
notify his intention for making such an application. The notice should be accompanied
by the grounds on which the application is made. This Section also instructs the Courts
not to make any order on the merits of the application so submitted by the person, unless
at least a time period of twenty-four hours has elapsed between the making of such a
notice and hearing of the application.
Stay of proceeding to the subordinate court
Subsection 6 of Section 407 of the Code contains provisions relating to the stay of proceedings
which are going on in any subordinate court. The provision states that where the application
for the transfer of cases from any subordinate court is lying before the High Court. The High
Court, may if it deems fit in the interest of justice, stay the proceedings in the subordinate court
on such terms which it finds appropriate. However, if such an order is made by the High Court,
it should not have any impact on the sessions court’s power to remand which is guaranteed to
it by Section 309 of the Code.
Where the application is dismissed by the High Court
Subsection 7 of Section 407 of the Code contains provisions regarding the cases where the
High Court dismisses the application made to it under subsection 2 of Section 407 of the Code.
If the High Court finds that the application for the transfer of appeal or case was vexatious and
frivolous, it may order the applicant to pay a compensation of an amount not exceeding one
thousand rupees to any person who had opposed the application made by the applicant. The
court in such cases decided the compensation keeping in view, the facts and circumstances of
the case.
Saving

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Subsection 9 of Section 407 of the Code is the saving clause and it provides that nothing
contained under Section 407 of the Code shall have any effect on the orders which are passed
by the Government of India under Section 197 of the Code which prevents the courts from
taking cognizance of any case which involves the criminal charges against any public servant
unless a previous sanction has been obtained by the court from the competent authorities.
Conclusion
Transfer of cases does not alter the nature of the trial or relief which is provided to the parties
to the suit. It is a mechanism ensuring the parties are rendered justice. The authority of
transferring of criminal cases from one court to another is conferred upon Supreme Court, the
High Court and the Sessions Court. However, the powers with each of the institute differ. If the
party to the suit enforces their rights guaranteed to them under the Sections and it is found that
the intention of the party is vexatious then the courts have the discretion of ordering
compensation to be paid by such person to the person who has opposed it. The sum of
compensation that the court may order differs from courts to courts. Cases can be recalled or
withdrawn by the Sessions Judge, Judicial Magistrate and Executive Magistrate. The order
made under these sections has to be recorded with the reasons for making these orders. There
should be reasonable apprehension that justice would not be met by the court under jurisdiction
then only the case can be transferred.

Q.16. Explain the provisions relating to plea bargaining under the Criminal Procedure
Code, 1973 and discuss its advantages and disadvantages. [15]
Ans. Introduction
Plea bargaining is a process of negotiation between the accused and the prosecution in which
the accused agrees to plead guilty to a lesser charge or to a reduced sentence in exchange for a
more lenient punishment or some other benefit. In India, plea bargaining is governed by the
Code of Criminal Procedure, 1973, and the Plea-Bargaining Rules, 2017.
Under the Indian legal system, plea bargaining is available for offenses that are punishable with
imprisonment for a term of seven years or less. The accused person must voluntarily opt for
plea bargaining, and the court must be satisfied that the plea has been made voluntarily and
with full knowledge of its consequences.
The aim of plea bargaining is to resolve a criminal case without going to trial, thereby saving
time, resources, and expenses for both the prosecution and the defendant. Plea bargaining is
also seen as a way to ensure that the defendant receives a fair and appropriate sentence for their
offense, while avoiding the risks and uncertainties of a trial.
Provision Of Plea Bargaining In Indian Legal System
The provision for plea bargaining in the Indian legal system was introduced through the
Criminal Law (Amendment) Act, 2005, which amended the Code of Criminal Procedure, 1973.
The provision for plea bargaining is contained in Chapter XXI-A of the Code, which was
inserted by the 2005 Amendment.
Provision Of Plea Bargaining under CrPC

40 -Rashi Waghmare
The provision for plea bargaining in the Indian legal system was introduced through the
Criminal Law (Amendment) Act, 2005, which amended the Code of Criminal Procedure,
1973. The provision for plea bargaining is contained in Chapter XXI-A of the Code, which
was inserted by the 2005 Amendment.

Section 265-A to 265-L of the Code outline the procedure for plea bargaining in India.
These sections provide for the following:
1. Eligibility for plea bargaining:
Only offenses that are punishable with imprisonment up to seven years or with a fine
are eligible for plea bargaining. Additionally, certain offenses such as those committed
against women or children, and those under special laws like the Narcotics Drugs and
Psychotropic Substances Act are not eligible for plea bargaining.
2. Initiation of plea bargaining:
The accused, through their counsel, may initiate the plea-bargaining process by
making an application to the court expressing their willingness to plead guilty to the
charges in exchange for a lesser sentence.
3. Role of the prosecutor:
The prosecutor has a key role in the plea-bargaining process, and they must agree to
the terms of the plea bargain. The prosecutor will also inform the court of the terms of
the plea bargain.
4. Procedure for plea bargaining:
The court will conduct a preliminary hearing to ensure that the accused has
voluntarily and knowingly agreed to the plea bargain and that they understand the
consequences of their plea. If the court is satisfied that the plea bargain has been
entered into voluntarily and knowingly, it will dispose of the case in accordance with
the terms of the plea bargain.
5. Appeal and revision:
A person who has entered into a plea bargain may not appeal against their conviction,
but they may file a revision petition challenging the legality of the sentence. The
prosecutor may also file a revision petition if they believe that the sentence imposed
under the plea bargain is inadequate.

It is important to note that the terms of a plea bargain will depend on the facts of the case and
the discretion of the prosecutor and the judge. Plea bargaining is a voluntary process, and both
the defendant and the prosecution must agree to the terms of the agreement.
Supreme Court Landmark Judgement
There have been several landmark judgments by the Supreme Court of India on plea
bargaining. Here are a few notable ones:
Murlidhar Meghraj Loya v. State of Maharashtra (1976)
This was the first case in which the Supreme Court of India recognized the concept of plea
bargaining. The court observed that there was no provision for plea bargaining in the Code of

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Criminal Procedure, but it could be used in appropriate cases to dispose of criminal cases
expeditiously.
State of Gujarat v. Natwar Harchandji Thakor (2001):
In this case, the Supreme Court of India held that the power to accept or reject a plea bargain
lies solely with the court, and it cannot be influenced by the wishes of the prosecution or the
accused.
State of Uttar Pradesh v. Chandrika (2005):
This case was decided soon after the introduction of the plea-bargaining provision in the Code
of Criminal Procedure. The court held that the purpose of plea bargaining was to expedite the
disposal of cases and reduce the burden on the courts, and it should not be used as a tool to let
the guilty go unpunished.
Advantages of Plea Bargaining
If the person accused of the crime was involved or did commit the crime, there will be some
advantages of plea bargaining. Some of those advantages include:
 The defendant may wind up with a lighter sentence than if they had taken their chances
with a court trial. Fines and restitution may be reduced.
 It removes the uncertainty of the trial for the defendant.
 It creates the certainty of conviction for the prosecutor.
 A length jury trial is avoided. If the accused wishes to avoid a long trial and the expenses
and emotional investment that it may include, a plea bargain can be advantageous.
 It can reduce the jail population. Lower sentences mean less people incarcerated at one
time.
 It frees up resources in the criminal justice system since the case is processed quicker
and easier.
Disadvantages of Plea Bargaining
Some disadvantages of plea bargains include:
 The defendant does not have the opportunity to have their case decided by a jury.
 It could lead to convictions of innocent people. In some situations where a person is
falsely accused of a crime, they may feel it is more beneficial to take a plea deal instead
of going to a court trial. This also leads to a criminal record of the person who enters
into a plea bargain.
 Judges may not always approve a plea bargain. A judge could always make the sentence
more severe than what was agreed upon in the plea bargain. The judge could also
impose no sentence if that is the judge’s decision.
 The victim of the crime could feel that the sentence is too light for the defendant.

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  There is no chance for the defendant to appeal a plea bargain since the defendant plead
guilty.
 There is a possibility that a defendant is coerced into the plea bargain
Conclusion
Plea bargaining is a voluntary process, and both the prosecution and the accused must agree to
the terms of the agreement. Eligibility for plea bargaining is limited to offenses punishable with
imprisonment up to seven years or with a fine. The prosecutor plays a key role in the plea-
bargaining process and must agree to the terms of the plea bargain.
Overall, plea bargaining is seen as a tool to reduce the burden on the criminal justice system
and to expedite the resolution of criminal cases. However, it is important to ensure that the
accused is fully aware of their rights and the consequences of their plea, and that the plea
bargain is entered into voluntarily and without coercion or undue influence. The Supreme Court
of India has delivered several landmark judgments on plea bargaining, which have provided
important guidance on the scope and application of the plea-bargaining process in the Indian
legal system.
Module 8
Q.17. Explain the provisions relating to judgement under Criminal Procedure Code,1973
[15]
Q.18. What is Judgement? Explain generally the form and contents of judgement and
mode of pronouncing judgement. [15]
Ans. Introduction
“The people’s good law is the highest law” – Cicero
Chapter XXVII of the CrPC, 1973, deals with Judgement. However there is no definition of
“judgement” present in the Code, but it is to be understood as the final order of the Court. In
the case of Ismail Amir Seikh vs. the State of Maharashtra, it was held that a judgment is the
act of judging. It was pointed out that judgment should clearly mention the reason for accepting
an argument and rejecting the other. This chapter is very important as it shed light on the various
provisions related to “judgement” in a Criminal proceeding.
Form and contents of the judgment under Section 353
In a judgement Ratio decidendi and Obiter dicta form an integral part. Ratio decidendi is the
binding statement in judgement and Obiter Dicta is the “by the way” remarks delivered by the
judge which is not necessary to the case at hand. These two are very important as they define
the legal principles which are useful to the legal fraternity.
If the judgement is of acquittal-
 Whether the evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove it beyond a reasonable doubt.
 If the act or omission from which the liability might arise doesn’t exist.
If the judgement is of conviction-

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  The essential elements of the offence committed by the accused and the intervening
circumstances which led to the commission of this offence.
 Participation of the accused as the principal perpetrator, or accomplice or accessory.
 The penalty that is imposed on the accused.
Provisions relating to Judgement under CrPC
Section 354: Language and contents of judgment
1. Under Section 354, of CrPC, it is stated that every judgement should be:
 In the language of the Court.
 Shall contain the points of determination and the reason for the same.
 The offence should be specified and the reason for the same should be given for the
same. The offence so committed must be mentioned in the IPC or any other law under
which the crime is committed and the punishment is given.
 If the offender is acquitted, the offence for which he was acquitted, the reason for the
same and it must be specified that a person is now a free man.
2. If the judgment is passed under the IPC and the judge is not certain as to under which Section
the offence is committed or under which part of the Section, the judge should specify the same
in the judgement and should pass orders in both the alternate situations.
3. The judgement shall furnish a proper reason for the conviction if it is a sentence for a term
of life imprisonment and in case of death sentence the special reason has to be given.
Section 355: Judgment given by Metropolitan Magistrate
This section provides instructions which are required to be followed by a Metropolitan
Magistrate while pronouncing a judgement. Under Section 355 of the CrPC, it is mentioned
that the judge instead of giving the judgement in an above-mentioned way, can deliver it in an
abridged version that would contain-
 The serial number of the case,
 Date of the commission of the offence,
 Name of the complainant,
 Name of the accused person, his parentage and residence,
 Offence complained of or proved,
 Plea of the accused and his examination,
 Final order,
 Date of the order,
 In cases where the appeal lies from the final order, a brief statement of reasons for the
decision.

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Post-conviction orders in lieu of punishment
Section 357
This section talks about the power of the court to demand compensation from the accused with
regard to the losses incurred by the other party to the suit. Such compensation may be for the
costs of the proceeding, compensation for causing harm, injury or death, etc. There is a
particular period of time provided for an appeal against such demand of compensation by the
court. Once such period expires, the accused shall be liable to pay such compensation.
Section 358
If a person gets arrested due to another person registering a false complaint against such a
person with the police. Then the court shall order such a person who posted the complaint to
pay compensation which shall not exceed one thousand rupees, to the person so arrested. Such
compensation is required to be paid for the lost time and money of such a person so arrested.
If there is more than one person who has been arrested under such circumstances, then
compensation of rupees hundred such be paid to each person.
Section 360 of the CrPC mentions a provision in which a person could be released on good
conduct or after admonition.
Section 361: Decisions as to punishments
This section tells us that under the following circumstances special reasons supporting the
judgement should be recorded:
Where an accused is a person under section 360 or under the provisions of the Probation of
Offenders Act, 1958. When an offender is a person supposed to be considered under the
Children Act, 1960.
Section 362: Court not to alter judgment under Section 362
This section tells us that once a judgement is pronounced, no change shall be made by the court
or the presiding officer on such judgement. Unless the appeal is filed at a higher court.
Section 363: Copy of judgment to be given to the accused and some other persons
This section tells us that a copy of the judgment pronounced by the presiding officer of the
court shall be given out to the accused, the complainants and all such persons associated with
the proceeding in reference to which such a judgement has been passed.
Section 364: Translation of judgment
This section provides that every judgement pronounced by a court should be recorded. In an
instance where such judgement is not in the language of the court and the accused requires so,
then the judgement should be translated into the language of the court and stored accordingly.
Section 365: Court of Session to send a copy of finding and sentence to District
Magistrate

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This section tells us that in case a judgement is pronounced by a court of session or by a Chief
Judicial Magistrate, then a copy of such a judgement should be sent to the office of the District
Magistrate.
Conclusion
Judgement forms an important part of any legal proceedings; it mentions the decisions that are
taken after hearing the argument from both sides and the reason for the same. Chapter XXVII
of the Criminal Procedure Code, 1973, gives a detailed description of the judgement in criminal
matters. Provisions relating to the language, contents etc are provided. The judgement in cases
of a death sentence, fine or imprisonment separate provision is present for delivering of
judgement.

Module 9
Q.19. Explain the provisions relating to Appeals under Criminal Procedure Code,1973.
Q.20. Critically examine the provisions relating to appeals and revisions under the
CrPC,1973 and discuss the powers and duties of the appellant courts. [10]
Ans. Introduction
The word “appeal” has not been defined in The Code of Criminal Procedure, 1973, (hereinafter
CrPC), however, it can be described as the judicial examination of a decision, given by a lower
court, by a higher court. The Merriam-Webster dictionary defines appeal as “a legal proceeding
by which a case is brought before a higher court for review of the decision of a lower court”.
The supreme court has supervisory jurisdiction due to the victims’ right to redress. The
Criminal Procedure Code, 1973, Chapter 30, Sections 395 to 405, deals with reference and
revision. Without negligence or irregularities, justice is administered in a fair and proper
manner. Under the Criminal Procedure Code, review procedures include both appeal and
modification. They have the authority to carry out or commute a punishment. The right to a
hearing does not grant the litigant any rights; rather, it solely preserves the High Court’s
authority to administer justice in line with the law. They may even have the authority to request
an inquiry, subject to some restrictions.
Provision relating to 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

46 -Rashi Waghmare
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:

 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.
 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.
 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.
 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:
 Under Section 377, to increase the severity of a punishment;
 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
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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 fines, or both if found guilty in court of
session.

48 -Rashi Waghmare
  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.
Case laws
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.
Revision Petition procedure under CRPC
Revision is a legal procedure that involves a higher court reviewing an order or decision
made by a lower court. The revision aims to identify and correct instances where the lower
court may have exercised its judicial power inappropriately. The main goal is to ensure that
the lower court operates within the limits of its authority and adheres to established legal
principles. In essence, revision is similar to the power of supervision and superintendence. Its
purpose is to examine the accuracy, legality, or propriety of any proceedings that have taken
place before a lower court.

SECTION 379: Revision is the power of a higher court to order records and facts from a
subordinate court. In this case, the higher court has the power to revise the faulty judgment by
its subordinate. It is an inter-court provision.

The higher court can call for records of a decree by any subordinate court if it appears
that:
 The lower court has overused jurisdictions.
 The lower court has disused its jurisdictions.
 The court has acted unfairly and illegally.

The High Court can not interfere with the functions and procedures of subordinate courts until
it is evident and proven that the judgment is capable of causing irrevocable trauma. The court
can only correct errors of facts or law once the time decision of the court falls out of its
jurisdiction.
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Exception
1. Section 397(2): Applies to the interlocutory decree, inquiry, trial, or another
proceeding.

CASE: Amar Nath Vs. State of Haryana[1]

The Indian Supreme Court has stated that the term "interlocutory order" in Section
397 (2) of the Code of Criminal Procedure, 1973 refers to temporary orders that do
not determine the crucial rights or liabilities of the parties involved. Suppose an order
significantly impacts the accused's rights or decides certain parties' rights. In that case,
it cannot be considered an interlocutory order and, therefore, cannot prevent a revision
from being filed. In simpler terms, an interlocutory order is a temporary order that
does not significantly impact the rights or liabilities of the parties involved.

CASE: Madhu Limaye Vs. State of Maharashtra[2]

The Supreme Court of India further observed that the real intention of the legislature
was not to equate. The expression interlocutory order is invariably converse of the
word's final order. An order passed during a proceeding may still need to be finalized,
but it may be something other than an interlocutory, pure, or straightforward order.
Some kinds of order may fall in between the two.

The bar in sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973 is
not meant to be attracted to such interlocutory orders. They may not be final orders
for the purposes. Nevertheless, it would not be correct to characterize them as merely
interlocutory orders within the meaning of Section 397 (2) of the Code of Criminal
Procedure, 1973.

2. Section 397(3): If an individual is made an application under High Court, then no

Sessions Judge can entertain, and no High Court entertains when the Sessions Judge
makes an application.

CASE: Sanjay Kumar Rai Vs. State of Utter Pradesh & Anr[3]
It was held that orders framing charges or refusing discharge are neither interlocutory
nor final and are, therefore, not affected by the bar of Section 397 (2) of the Code of
Criminal Procedure.
Power of Appellate Courts
The power of appellate courts is given in section 107 of the code which says that subject to the
limitations provided, an appellate court has to power to –
1. To finally determine a case.
2. To remand a case.
3. To frame issues and refer them to trial.
4. To summon witnesses.

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5. To obtain additional evidence or order such evidence to be taken.
6. To reverse the decree of the lower court if it is not justified.
This section further goes on to state that the appellate courts shall have the same powers and
shall perform their duties as nearly in the same procedure as has been laid down by this code
for courts of original jurisdiction.
Duties and Functions of Appellate Courts
The powers of the appellate court are not absolute and this is inferred by looking at the duties
that are fixed upon it. The following are its duties and function–
1. It has a duty to analyse the factual positions keeping in mind the relevant laws and decide
the case. It is the duty of the court to give judgment based on the appeal by applying the judicial
minds that the judges possess.
2. It has a duty to give cogent or appropriate reasons while reversing the judgement of an
inferior court. It is one of the most important functions of the court which says that all appellate
courts other than a high court have a duty to record reasons justifying their decision.
3. To decide the appeal only in compliance with the scope and powers conferred upon it under
section 96 and rule 32 of the code.
4. It has a duty to reappreciate the evidence. The court after taking due care and caution should
reappreciate the evidence that was presented before the lower court to make sure that the
approach of the trial court while recording and appraising the evidence was not erroneous or
contrary to the established principles.
5. It has a duty not to reverse or interfere with a decree passed by a lower court only on technical
grounds if the decree is otherwise correct and based on merits.
Module 3
Q.21. Explain the Provisions relating to arrest without warrant by the private person
under Criminal Procedure Code,1973. [15]
Q.22. Define Arrest and explain the Procedure of arrest under the Criminal Procedure
Code, 1973. [15]
Q.23. What are the exceptions to the general rule that the person cannot arrest without
warrant by the Police officer under Criminal Procedure code,1973. [10]
Ans. Introduction
The main object of criminal law is to protect society from criminals and lawbreakers. The
criminal law consists of both procedural law and substantive law. In India, substantive law is
the Indian Penal Code, 1860 and procedural law is the Code of Criminal Procedure, 1973.
The procedural aspects of arrest are laid down in the Code of Criminal Procedure, under this,
the complete process is mentioned related to the arrest of a person who has committed any
offence. Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of a person
under Section 41 to 60.
The term arrest is not defined anywhere but it can be defined as:

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A seizure or forcible restraint, an exercise of power to deprive a person of his or her liberty.
The major purpose of arrest is to bring the person before a court and secure administration of
law. An arrest also serves the purpose of notifying the society that a particular individual has
committed an act which is against the society and act as a remark to deter crime in future.
Arrest
Arrest means deprivation of person's liberty by legal authority.
There are four components involved:
 A seizure or touching of a person's body.
 Followed by words such as you are under arrest
 The person's submission to the compulsion.
 The police informing the person of the true grounds for his arrest.
Persons authorised to arrest:
Code of Criminal Procedure empowers three people to issue the process of arrest. They are:
 A police officer with or without a warrant depending on the nature and gravity of the
offence,(Section 41)
 A private person can arrest another person who in his presence commits a non-bailable
offence, cognizable offence or is proclaimed offender.(Section 43)
 A magistrate,(Section 44)
The provisions of the CrPC that deal with arrest range from Section 41 – 60A under Chapter –
V (Arrest of Persons).
Arrest by a Police officer
The police officers have been authorized to arrest any person without the warrant ordered by
the court under Sections 41, 42, 151 of CrPC.
Section 41 of CrPC provides for those instances where a police officer has been authorized to
arrest an individual without a warrant from the magistrate. This happens.

When the individual is:

1. Involved in any cognizable offense such as murder, rape, kidnapping, theft, etc. or
2. In possession, without, lawful excuse, of any housebreaking weapon or
3. Proclaimed as an offender either under CrPC or by order of the State Govt. or
4. In possession of any stolen property or
5. Obstructing a police officer while in the execution of his duty or who has escaped, or
attempts to escape, from lawful custody
6. Reasonably suspected of being a deserter from any of the Armed forces of the Union
7. Concerned with any law relating to extradition

52 -Rashi Waghmare
 8. Involved in breach of any rule made under sub-section (5) of Section 356 CrPC
9. The one whose arrest's requisition has been received from another police officer
specifying the person to be arrested and the offense and other cause for which the arrest
is to be made.[4]

Section 42 specifies yet another situation where a police officer can arrest a person. According
to this section, if a person commits an offense in the presence of a police officer or where he
has been accused of committing a non-cognizable offense and refuses, on demand being made
by a police officer to give his name and residence or gives false name or residence, such person
may be arrested but such arrest shall be only for the limited purpose of ascertaining his name
and residence.
After such ascertaining, he shall be released on executing a bond with or without sureties, to
appear before a magistrate if so required. In case the name and residence of such person cannot
be ascertained within 24 hours from the date of arrest or if such person fails to execute a bond
as required, he shall be forwarded to the nearest magistrate having jurisdiction.[5]
Also, Section 151 of The CrPC, 1973 provides for the arrest of a person who is suspected to
commit any cognizable offense by the police officer without a warrant from the magistrate, if
the police officer finds no other way of preventing the execution of such offense. A person
arrested under this section can be detained for more than 24 hours from the time of arrest unless
such extended detention is required under provisions of CrPC. [6]
Arrest Made by Magistrate
Section 44 of CrPC provides for the provision of an arrest made by a magistrate. The sub-
section 1 of this section provides that when an offense is committed in the presence of the
magistrate within his jurisdiction, he may himself arrest or order someone to arrest the
offender and may commit the offender to custody. Under sub-section 2 the magistrate can
arrest or order for the arrest of a person for whose arrest he is competent to issue a warrant.

Under sub-section (1) of Code of Criminal Procedure, 1973 the Magistrate has been given the
power to arrest a person who has committed an offense in his presence and also to commit
him to custody, while under sub-section (2) of Section 44 Cr. P. C the Magistrate has full
power to arrest a person suspected of having committed an offense but has not been given
any power to commit him to custody.[7]

Further, Section 107 of CrPC provides the power to the Executive Magistrate who has
received information for arresting a person who is likely to commit a breach of the peace or
disturb public tranquillity in any way, to show cause why he should not be ordered to execute
a bond with or without sureties for keeping the peace for such period, not exceeding one year,
as the Magistrate thinks fit.

Arrest by Private Persons

Section 43 of CrPC provides the procedure for arrests made by private individuals. This
section gives the right to a private person to arrest on the individual, who in his/her presence,
commits a cognizable or a non-bailable offense or who is a 'proclaimed offender' The private
person can arrest such an offender to hand over his custody to the nearest police station and if

53 -Rashi Waghmare
the police officer finds such person coming under the provisions of section 41, the police
officer has to re-arrest the offender. He can do on the basis of his own knowledge and seen by
his own eyes. If the private person making arrest under this section fails to follow the after-
arrest procedure as prescribed in this section, he can be prosecuted for the offence of
wrongful confinement under Section 342 of IPC

Provision for Members of Central Armed Forces

Section 45 of CrPC exempts the members of the Armed forces from being arrested for
anything done by them in the discharge of their official duties except after obtaining the
consent of the government. Sub-section 1 of this section provides that sections 41 to 44 of
CrPC would not be applicable on members of armed forces of the union and they cannot be
arrested for anything done by them during the discharge of their official duty, but they can be
arrested after taking consent of the central government. If a member of Armed Forces of the
union has been conferred with a responsibility to maintain public order in a specific state or
region, then the state government of the state where the members are deployed may make the
provisions of section 45(1) applicable, just like the Central Government does, for such
members of Armed forces. [10]
Special Provision Regarding Arrest of Females
Women have been given some special privileges which have to be necessarily followed while
carrying out their arrest.
The general rule is that Females are not be arrested without the presence of a lady constable
and further no female is arrested after sun-set. But there is an exception in those cases where
crime is very heinous and arrest is important as in these cases arrest can be made upon special
orders based on the facts of such cases. Separate lock-ups are to be provided to women.
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.
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.

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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.
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
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.
Case Laws
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.
SC in the case of 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

55 -Rashi Waghmare
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.
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).
Q.24. What are general Provisions relating to search? Can the Police search without
warrant? When can a court issue search Warrant? [15]
Ans. Introduction
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.
Provisions related to Search
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.

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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.

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Search and Seizure at Different Places without warrant 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.
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.

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Module 2
Q.25. Explain in detail about Cognizable and Non- Cognizable offence and its distinction.
[15]
Ans. Introduction
Criminal offences are divided into different types according to their seriousness, character, and
the processes used in their investigation and trial.
Bases on the aforementioned criteria, offences can be divided into two categories:
cognizable offences and non-cognizable offences. The degree of police involvement, the
procedure for making an arrest, and the progress of the legal process are all influenced by these
classifications. However, not all offences are the same and they require different treatment. The
Indian Penal Code, 1860 (IPC) is the official criminal code of India. It covers all the substantive
aspects of criminal law. All the acts that amount to crime are defined in it. Based on the nature
and gravity of offences, they can be classified into 3 types. These are bailable and non-bailable
offences, cognizable and non-cognizable offences, and compoundable and non-compoundable
offences. In this article, we shall look into the differences between cognizable and non-
cognizable offences.
Cognizable Offences
The Criminal Procedure Code, 1973 (CrPC) defines the term cognizable offence under Section
2(c). Cognizable crimes are those for which the police have the authority to arrest the accused
without a warrant or a magistrate’s approval. The consequences of these crimes are horrible
and more severe as opposed to non-cognizable offences.
The First Schedule of the Code outlines how offences are categorized and whether a certain
offence fits into the category of a cognizable offence or not. Such offences include rape,
murder, kidnapping, theft, and abduction, among others. These offences put society at danger
and undermine its peace and harmony.
After a First Information Report (FIR) is filed, the investigation into crimes that are punishable
by law begins. It is information that is provided to the police officer orally or in writing and is
regarded as proof gained in cases with cognizable elements. Additionally, it strengthens the
prosecution’s case. Section 156 of the CrPC gives police officers the authority to look into a
crime that is legally actionable.
Procedure in Cognizable Offences
1. The case begins as soon as a First Information Report (FIR) is filed at the police
station. It informs the police of the commission of a cognizable offence by someone
identified or unidentified. A copy of the FIR is given to the complainant and a second
copy is sent to the magistrate.
2. Investigation begins as soon as the information is recorded by the police officer. The
officer-in-charge appoints the appropriate policemen to go to the spot and arrest the
accused.
3. If the investigation requires searching for documents, then the police can do so and can
order a person to produce relevant documents.

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 4. The arrested person is placed under detention and questioned up until he is produced
before the magistrate within 24 hours of the arrest including the time taken to travel to
the magistrate.
5. If the police find that the investigation cannot be completed within 24 hours, they will
then make an application to the magistrate and request him to extend the period of
custody. Based on the preliminary investigation, if the magistrate finds it appropriate,
he can remand the arrested person for not more than 14 days.
6. While investigating, the police are well within their rights to question witnesses and
record their statements. These can have a huge impact on the case going forward.
7. The medical examination of rape or molestation victims is to be conducted within 24
hours of the offence being reported.
8. After the investigation is concluded, a charge sheet is prepared and sent to the
magistrate. A report consisting of the FIR, witness statements, names of parties, facts,
and information gathered by the investigating officer is sent to the magistrate.
9. Then the judge calls upon the parties and informs them of the preliminary finding. At
this stage, witnesses are brought forward and asked to make the same statements that
they made to the police, but this time under oath. The accused has the option to plead
guilty, and if he doesn’t then the case goes to court.
10. The trial commences in the trial court, where all the witnesses are called upon and are
asked to make statements under oath. Both parties make their arguments.
11. The judge then prepares a judgement that is based on various points, which are
explained in it. As it is a case of a cognizable offence, the accused, if found guilty is
sent to prison for not less than three years and other such punishment as may be
prescribed by the IPC.
Non-cognizable Offences
Section 2(l) of the CrPC defines non-cognizable offences are those offences for which a police
officer cannot arrest the accused without a warrant and cannot initiate an investigation without
the permission of a court. A non-cognizable offence is a criminal act that is typically less serious
in nature.
Section 155(2) states that the police require permission from the Magistrate to file a FIR for
non-cognizable offences. Under Section 158, a police report must be submitted to the
Magistrate to inform them of the ongoing investigation for both cognizable and non-cognizable
offenses.
If someone approaches a police officer to report a non-cognizable offense, the officer will make
a note of the information in a book at the police station. However, the officer cannot take
immediate action to investigate or make an arrest without the direction of a Magistrate. The
Magistrate, as per Section 159, has the authority to decide whether the investigation should
proceed and can issue directives accordingly.
Procedure in Non-Cognizable Offences

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 1. In non-cognizable offences, the police are not permitted to arrest the accused without
an arrest warrant. An officer is not allowed to investigate a non-cognizable case without
the consent of the magistrate. This is provided in Section 155(2) of the CrPC.
2. receiving the order from the magistrate, the police officer can initiate an investigation
with the same powers he exercises in a cognizable case. Thus, the procedure of
investigation stays the same in both.
Difference between Cognizable and Non-Cognizable Offences

S.no Basis Cognizable Non-cognizable

Cognizable offences are those in Non-cognizable offences are those

which the investigating authority in which the investigating authority
1 Meaning
can arrest the accused without an cannot arrest an accused without an
arrest warrant. arrest warrant.

Permission Not required, investigation can be Required, investigation can begin

2
of court initiated as soon as an FIR is filed. only after the court issues an order.

Severity of Cognizable offences are serious Non-cognizable offences are less

3
crime crimes. serious.

4 Examples Murder, theft, kidnapping, etc. Assault, cheating, defamation, etc.

It is defined in the Section 2(c) of

It is defined in Section 2(I) of
5 Statutory the Criminal Procedure Code,
Criminal Procedure Code 1973
1973.

Landmark Judgements
1. Lalita Kumari v. State Of U.P: The Honourable Supreme Court ruled that pursuant to
Section 154, a police officer is required to file a police report (FIR) if the information
provided suggests the commission of a crime. The Court went on to rule that the word “shall”
does not give a police officer any discretion to conduct preliminary inquiries before filing a
police report.
The Court ruled that arresting officials who refused to file the FIR would face harsh
punishment. However, the court ruled that an arrest and an investigation are two distinct things.
If an FIR is registered against someone without any supporting evidence, section 154 does not
grant police the authority to make an arrest.
2. State of Haryana v. Bhajan Lal: The Supreme Court laid down guidelines for determining
when a preliminary inquiry can be conducted before registering an FIR in non-cognizable
offences. The Court held that a preliminary inquiry may be conducted only when there are
compelling reasons to do so, such as lack of prima facie evidence or the need to protect innocent
persons from harassment.

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Conclusion
The Criminal Procedure Code, 1974 has laid down the procedure of investigation by a police
officer in cognizable and non-cognizable offences. The differences between the two are
important to understand the powers of the police, rules of investigation, etc. In a cognizable
offence, the police can arrest the accused and initiate an investigation on their own without the
order of the magistrate. This is done in order to apprehend the accused as soon as possible
because cognizable offences are serious crimes. The accused has the probability of harming
other people in society. But this is not the case in non-cognizable cases. Hence, the procedure
to investigate remains the same in both and only the starting point, i.e., the arrest of the accused,
is different in both.

Q.26. What are the exceptions to the general rule that the person cannot arrest without
warrant by the police officer under Criminal Procedure Code, 1973. [10]

Ans. Introduction
‘Arrest’ is the act of apprehending a person and taking him into custody. It is usually done by
police in India. The Code of Criminal Procedure governs the arrest of persons by the police,
private persons, and magistrates.
There has to be a balance between individual liberty and the people’s power to arrest persons
for committing crimes. The procedural aspects of arrest are laid down in the Code of Criminal
Procedure, under this, the complete process is mentioned related to the arrest of a person who
has committed any offence. Chapter V of the Code of Criminal Procedure, 1973 deals with the
arrest of a person under Section 41 to 60.

Arrest
Arrest means deprivation of person's liberty by legal authority.
There are four components involved:
 A seizure or touching of a person's body.
 Followed by words such as you are under arrest
 The person's submission to the compulsion.
 The police informing the person of the true grounds for his arrest.

Persons authorised to arrest:

Code of Criminal Procedure empowers three people to issue the process of arrest. They are:

 A police officer with or without a warrant depending on the nature and gravity of the
offence,
 A magistrate,

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  A private person can arrest another person who in his presence commits a non-bailable
offence, cognizable offence or is proclaimed offender.

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

The police officers may arrest a person without warrant under certain conditions. The condition
to arrest a person without warrant mentioned under Section 41 of the code are as follows, any
person:

1. Who has been involved in a cognizable offence such as murder, rape, theft or is
suspected to be so involved of having committed a cognizable offence punishable with
imprisonment of 7 years or more or against whom a complaint has been received has
been received of such involvement

2. Who has been in possession of any housebreaking weapon without any lawful excuse.
3. Who has been proclaimed as an offender either under Criminal Procedure Code or any
other order by state government or any law in force.

4. Who obstructs any police officer while performing his duty or who have escaped or
make attempts to escape from lawful custody.
5. Who has been concerned in any law or against whom a reasonable complaint has been
made or credible information has been received, of his having committed involved in
an act committed at any place outside India, if committed in India would be punishable
of an offence and for which he is under law relating to extradition or otherwise, liable
to be apprehended or detained in custody of India.
6. Who is reasonably suspected of being a deserter from any of the Armed forces of the
Union.

7. Who being released as a convict, commits a breach of any rule mentioned under
subsection 5 pf section 356 i.e., the state government may be notification make the rules
to carry out the provisions of this section relating to the notification of residence or
change of residence.

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For whose arrest requisition has been received from another police officer, provided that the
requisition must specify the person to be arrested and the reason for which the arrest is to be
made and it appears that the person must be lawfully be arrested without a warrant.

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).

Case laws
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.

Conclusion
The Code of Criminal Procedure tries to balance between the liberty of individuals and the
powers of the police and relatively succeeds in doing so. In India, whenever a crime transpires,
the laws are blamed. It is stated that the laws are not strict enough. According to me, lack of
laws or lack of stringency of laws in never the problem. The issue is with the implementation
of the law. The main issue is the proper training of the police officers. India has ample laws,
and the laws are good as well. The laws in place only need to be implemented properly.

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Module 11
Q.27. Describe the appointment, Power and duties of Probation Officers Under Probation
of Offenders Act, 1958. [15]
Ans. Introduction
The Probation of Offenders Act of 1958 builds on the premise that juvenile offenders should
be stopped by counselling and rehabilitation rather than thrown into jail by being regular
offenders. The probation officer focuses on the offender’s concern or desire, and tries to solve
his concern and aims to make the offender a productive member of the community. Within the
criminal justice system, the probation officer plays a critical or important role. He is at the
forefront of the rehabilitation of the prisoners, he helps confess and rehabilitates the prisoners
as a decent citizen in society.
Probation Officer
A probation official is a court officer who regularly meets people sentenced to a supervised
probation period. Generally, these people are perpetrators and lower-level criminals. The
majority of the offenders placed on probation are first time offenders. Placing any one on
probation is a way for the court to prevent offenders from incarceration. Many that are on
probation live in our neighbourhoods, stay home, are working or participating in an educational
program, and raise their children.
Appointment of Probation Officer
Section 13 of the Probation of Offenders Act states about the appointment of Probation Officer:
1. A person appointed by or recognized as a probation officer by the Government of the
State.
2. A person to whom a company recognized on behalf of the State Government has made
provision for this reason.
3. Any other person who, according to a court, is fit to act, under the particular
circumstances of the case, as a probation officer in an exceptional case.

Role of Probation Officer

Probation is the most important or effective method of treatment. The probation officer cannot
function as a supervisor without the cooperation of the police. It is significant for the role of
the police. Two organizations of the State are the trial officer and the police and the goals are
largely identical. The entire outdoor rehab scheme will fail because the priorities and aims are
different, as it is obvious that police will show a desire to support probation officers.
The police have also played a key role in the rehabilitation and socialization of the institutions’
young criminals. It is believed that the public does not accept him when an individual is
released from a domestic institution. Society would tolerate him: otherwise, he will engage
again in anti-social activities and repetitive crimes. In this respect, it is the duty of the police
officer to restore such persons to society and also to ensure that other agencies such as
panchayat etc. are aware of their duty to help him to socialise and carry out his ordinary social

65 -Rashi Waghmare
work. In this situation, the probation officers must perform the same form of tasks, support the
offender to recover and adjust the offenders to other members of society.
Powers and Duties of Probation Officer
Pursuant to the Offenders Probation Act 1958 – Section 14 Gives details concerning the duties
of probation officers that, subject to such conditions and limitations as may be imposed, a
probation officer is expected to do:
1. Investigate the circumstances or domestic environment of any person accused of an
offence with the intention, in accordance with any direction of the Court, to help the
Court to determine and report the most appropriately advised approach to his dealing
with it;
2. Supervising probationers and other persons under his supervision and seeking suitable
employment where necessary;
3. Counselling and supporting victims in the payment by the Court of penalties or costs;
4. Advice and assist persons released pursuant to Section 4 in such situations and manner
as may be prescribed;
5. Perform the other duties prescribed as may be.
A probation agent, as laid down in Section 14 of the Act, has main functions, such as
investigation, supervision and guidance, counselling and professional control of criminal
probation. As an inspiring, guiding and supporting probationer, this probation officer facilitates
the rehabilitation of the criminal as a law-abiding member of society.
Conclusion
The Probation of Offenders Act, 1958 is very helpful especially in the present context of prison
reform, of a prison sentence that no longer recognizes the jail sentence as the only course of
care to ensure the safety of society, is of considerable significance to the judiciary and probation
services. The alternative punishment measure, i.e. probation and the theory of reform penalty,
can be achieved only by the cooperation of the judiciary and the administration. This will
benefit a country like India, with prisons that are always overcrowded, with regular abuses of
human rights that harden a person’s internality. Probation is a validation of the human being
inside every being, and priority should be granted. In the sense of current social structures, the
rehabilitation and recovery process must be structured to accomplish the ultimate objective of
returning these offenders to an orderly community. For all suitable cases, where the concept of
restorative justice has to be enforced, it is crucial that the various criminal justice systems
organizations work together to make probation an effective method of noncustodial care.

Q.28. Explain the Provisions relating to conditions and procedure in case of offender
failing to observe conditions of bond under the Probation of Offenders Act,1958. [15]
Ans. Introduction
“Hate the crime and not the criminal”. You might have heard this a zillion time. This means
that we need to eliminate crime and for this the elimination of criminals is not required. The

66 -Rashi Waghmare
Criminal Law in India is more into reforming offenders rather than punishing them. It is true
that punishment gives a sense of satisfaction to the society as well as to the victim, but this
does not reform the criminals. Especially in the cases of imprisonment, once the person is out
of prison, he is back to his old ways of infringement of rights. This is common in the cases of
youth criminals. Their minds are not mature and get diverted when engaged with several
criminals in jail.
Thus, instead of keeping the accused with hardened criminals in jail, the court may order
personal freedom on the basis of good behaviour. The court can also grant a supervision period
for the accused. The main aim behind the Probation of Offender Act, 1958 is to give an
opportunity to offenders to reform themselves rather than turning into hardened
criminals. Section 562 of the Code of Criminal Procedure,1898 (after amendment it stands
as Section 360 of the Code of Criminal Procedure, 1973) provides that any person not below
twenty-one years of age who may have not been convicted for an offence for imprisonment up
to seven years or not convicted to death or imprisonment of life can be released on the basis of
probation for good conduct.
Meaning of Probation
The Black’s Law Dictionary defines Probation as “Allowing a person convicted of some minor
offence to go at large, under a suspension of sentence during good behaviour and generally
under the supervision or guardianship of a probation officer.” The word ‘Probation’ is derived
from a Latin word ‘Probo’ which means “I prove my worth” and ‘Probatio’ which means “Test
of approval” to examine whether a person can live in the society without breaking the law.
Thus, probation means the act of proving the worth and building a character worthy to be
released.
Aim and Objective of Probation
The main aim and objective of probation is to permanently reform the lawbreakers. It involves
moulding the habits into constructive ways by rehabilitation and reformation. The objective is
to give a chance to the anti-social person to willingly cooperate with society. This will also give
him social protection and security. It is a substitution for imprisonment. Imprisonment will not
always serve the purpose of eliminating crime. The object of Probation Law is more to reform
the offender than to punish him. This is what we generally call Probation. Simply, it can be
understood as the conditional release of an offender on the promise of good behaviour.
The aim of this Section was to reform the young offender who might have committed the crime
under the influence of bad company or ignorance. The object is to remould and save them from
the hardened criminals who might distract them to the path of crimes. This Section also helps
the persons of mature age who may have committed the crime in influence. They are expected
to be good citizens of the country.
Scope of the Act
A huge discretionary power has been vested with the courts by the Act to release the convicts
after due admonition or on probation of good conduct. The main motive of entrusting the courts
with such a power is because each case is different from the other and a generalised provision
cannot be made in this respect. It is purely upon the court to determine the nature of the offence,
the character of the offender as well as the quantum of compensation or costs to be paid to the

67 -Rashi Waghmare
victim. Section 17 of the Act gives power to the State Government, upon approval of the
Central Government, to make rules for the proper implementation of this Act. All the duties,
salary etc for the probation officers shall be decided by the State Governments.
Provisions relating to conditions and procedure.
Section 4 – Probation of Good Conduct
Section 4 of the Act is the most important provision. It lays down that an offender can be
released on probation of good conduct without the sentence of imprisonment by the court. The
following points are applicable for this provision:
1. This Section is not applicable to any person who is convicted with either life
imprisonment or death penalty for the offence committed by him.
2. The Court shall consider the nature of the offence committed by such person as well as
the character of the person while considering whether the person is eligible to be
released on probation of good conduct.
3. Without sentencing the offender for any punishment, the court may release the offender
on probation of good conduct.
4. This Section empowers the court to give directions to execute a bond, with or without
sureties, to appear before the court when called and receive the sentence given to him
by the court.
5. This shall be done within such a period which shall not exceed 3 years.
6. The Court shall consider the report of the Probation Officer before making an order for
probation. However, such a report is not mandatory.
7. Additionally, the Court can also pass an order of supervision which shall not exceed 1
year. In such a case, the Probation Officer is ordered to supervise the probationer for
such a period. The court may also include conditions of the supervision in the order.
This Section requires that the offender or his surety (if any) shall have a fixed place of residence
and a fixed occupation at a place where the court giving such an order has jurisdiction. The
Court shall explain all the terms and conditions of the probation order and supervision order to
the offender and provide him with a copy of the orders the offender(s), sureties and the
probation officer.
The Court did not provide the benefit of Section 4 of the Act in the case of State of Maharashtra
vs Natwarlal AIR 1980 SC 593, where the offender smuggled gold. The court stated that this
offence affects public revenue and the economy of the nation thereby affecting public interest
at large.
In Phul Singh vs State of Haryana AIR 1980 SC 249, the court clarified that the provision of
Section 4 should neither be seen as undue leniency nor should it be applied in undeserving
cases. Further, in the case of Ram Prakash vs State of Himachal Pradesh AIR 1973 SC 780, the
court held that the provisions of Section 3 and Section 4 are not mandatory because of the
presence of the word “may” instead of the word “must”.
Section 5 – Compensation and Costs

68 -Rashi Waghmare
Section 5 states that along with the orders under Section 3 and Section 4, the court can furnish
an additional order directing the offender released after due admonition or released on
probation of good conduct to pay:
 Compensation, as the courts think, shall be reasonable for any loss or injury caused to
the victim due to the offender
 Costs of the proceedings
While calculating the quantum of compensation and the costs to be paid by the offender, it is
solely on the discretion of the court as to what is reasonable in the case. This was held in the
case of Rajeshwari Prasad vs Ram Babu Gupta AIR 1961 Pat 19.
Conclusion
To conclude, it can be said that this reformative action intended by the legislature can be
successful only when the judiciary and the administration work together. The Probation of
Offenders Act is ideal for a country like India, where prison overcrowding is one of the key
contributing factors of bad prison facilities. Every person wants an opportunity to improve by
becoming better and this Act gives exactly that.

Q.29. Explain about the object and application of the probation of Offenders Act 1958
and power of Court to release certain offenders after admonition. [10]
Ans. Introduction
“Hate the crime and not the criminal”. You might have heard this a zillion time. This means
that we need to eliminate crime and for this the elimination of criminals is not required. The
Criminal Law in India is more into reforming offenders rather than punishing them. It is true
that punishment gives a sense of satisfaction to the society as well as to the victim, but this
does not reform the criminals. Especially in the cases of imprisonment, once the person is out
of prison, he is back to his old ways of infringement of rights. This is common in the cases of
youth criminals. Their minds are not mature and get diverted when engaged with several
criminals in jail.
Thus, instead of keeping the accused with hardened criminals in jail, the court may order
personal freedom on the basis of good behaviour. The court can also grant a supervision period
for the accused. The main aim behind the Probation of Offender Act, 1958 is to give an
opportunity to offenders to reform themselves rather than turning into hardened
criminals. Section 562 of the Code of Criminal Procedure,1898 (after amendment it stands
as Section 360 of the Code of Criminal Procedure, 1973) provides that any person not below
twenty-one years of age who may have not been convicted for an offence for imprisonment up
to seven years or not convicted to death or imprisonment of life can be released on the basis of
probation for good conduct.
Meaning of Probation
The Black’s Law Dictionary defines Probation as “Allowing a person convicted of some minor
offence to go at large, under a suspension of sentence during good behaviour and generally
under the supervision or guardianship of a probation officer.” The word ‘Probation’ is derived

69 -Rashi Waghmare
from a Latin word ‘Probo’ which means “I prove my worth” and ‘Probatio’ which means “Test
of approval” to examine whether a person can live in the society without breaking the law.
Thus, probation means the act of proving the worth and building a character worthy to be
released.
Aim and Objective of Probation
The main aim and objective of probation is to permanently reform the lawbreakers. It involves
moulding the habits into constructive ways by rehabilitation and reformation. The objective is
to give a chance to the anti-social person to willingly cooperate with society. This will also give
him social protection and security. It is a substitution for imprisonment. Imprisonment will not
always serve the purpose of eliminating crime. The object of Probation Law is more to reform
the offender than to punish him. This is what we generally call Probation. Simply, it can be
understood as the conditional release of an offender on the promise of good behaviour.
The aim of this Section was to reform the young offender who might have committed the crime
under the influence of bad company or ignorance. The object is to remould and save them from
the hardened criminals who might distract them to the path of crimes. This Section also helps
the persons of mature age who may have committed the crime in influence. They are expected
to be good citizens of the country.
Scope of the Act
A huge discretionary power has been vested with the courts by the Act to release the convicts
after due admonition or on probation of good conduct. The main motive of entrusting the courts
with such a power is because each case is different from the other and a generalised provision
cannot be made in this respect. It is purely upon the court to determine the nature of the offence,
the character of the offender as well as the quantum of compensation or costs to be paid to the
victim. Section 17 of the Act gives power to the State Government, upon approval of the
Central Government, to make rules for the proper implementation of this Act. All the duties,
salary etc for the probation officers shall be decided by the State Governments.
Section 3 – Admonition
Section 3 deals with the power of the courts to release offenders on admonition. The
admonition is nothing but reprimand. This Section empowers the courts to release the offenders
where the offenders are released without undergoing the penalty prescribed by the Indian Penal
Code or any other relevant law. However, an offender is eligible for release under this Section
only if the following requisites are observed:
1. The person is guilty under Section 379 or Section 380 or Section 381 or Section 404 or
Section 420 of Indian Penal Code, or
2. The person is guilty of any offence punishable with imprisonment not exceeding 2 years
or with fine, or with both under the Indian Penal Code or any other law and
3. No previous convictions are proved against such persons, and
4. The nature of the offence and the character of the offender is taken into consideration.

70 -Rashi Waghmare
If a case abides with the above-mentioned requisites, then if the court deems fit, can avoid
sentencing such person with imprisonment or with probation under good conduct by releasing
the offender after giving a warning or advice to such person.
In the case of Basikesan vs State of Orissa AIR 1967 Ori 4, a 20-year-old boy was found guilty
of an offence under Section 380 of IPC and had no previous conviction against him. The court
held that this is a fit case for the application of Section 3 of Probation of Offender Act and he
was released after due admonition. In another case, Ahmed vs State of Rajasthan AIR 1967 Raj
190, the court held that this Section cannot be applied when a person indulged in an act which
resulted in a major communal tension in the society.
Conclusion
To conclude, it can be said that this reformative action intended by the legislature can be
successful only when the judiciary and the administration work together. The Probation of
Offenders Act is ideal for a country like India, where prison overcrowding is one of the key
contributing factors of bad prison facilities. Every person wants an opportunity to improve by
becoming better and this Act gives exactly that.

Module 2
Q.30. What is Bail? Discuss about Bailable and Non Bailable offences and its Distinction.
[10]
Ans. Introduction
The classification of offences into bailable and non-bailable offences is an important aspect of
the Criminal Procedure Code (CrPC) in India. In India, offences are classified into two
categories: bailable and non-bailable offences.
The classification is based on whether the accused is entitled to bail as a matter of right or
whether the bail is a matter of discretion of the court. Section 2(a) of the CrPC defines bailable
offences as those offences where bail can be granted as a matter of right and non-bailable
offences as those offences where bail is not a matter of right, but is subject to the discretion of
the court.
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.”
Chapter 33 of CrPC[ sect 436-450] deals with the provisions related to Bail and Bonds
Bailable Offences
Bailable Offences: Bailable offences are relatively less serious offences and are punishable
with imprisonment for a term of less than three years or with a fine only. Some examples of

71 -Rashi Waghmare
bailable offences are theft, causing hurt, mischief, defamation, and simple assault. Section 436
of the CrPC lays down the provisions for bail in bailable offences, which states that an accused
person arrested or detained for a bailable offence shall be released on bail if he or she furnishes
a bail bond with or without sureties.
However, in certain cases, the court may deny bail even in bailable offences. For instance, if
the accused has a prior history of committing similar offences, the court may deny bail, as he
or she may be likely to commit the offence again.
Bailable offences are those offences where bail is a matter of right. However, the person may
still be required to furnish bail bonds to ensure his presence at the trial.
Non-Bailable Offences
Non-Bailable Offences: Non-bailable offences, as the name suggests, are those offences
where bail is not a matter of right. In such cases, the accused has to approach the court for bail
and is required to furnish reasons and provide sureties before the court considers the bail
application.
Non-bailable offences are more serious in nature and are punishable with imprisonment for
three years or more. Some examples of non-bailable offences are murder, rape, dacoity, and
kidnapping. Section 437 of the CrPC lays down the provisions for bail in non-bailable
offences, which states that an accused person arrested or detained for a non-bailable offence
shall not be released on bail unless the court is satisfied that there are reasonable grounds for
granting bail.
However, the court may deny bail even if the offence is bailable if the accused has a history of
committing similar offences, or if there is a chance that the accused may tamper with the
evidence, intimidate witnesses, or flee from the jurisdiction of the court.
The decision of the court in granting bail or refusing bail is at the discretion of the judge. In
recent years, there have been concerns about the misuse of non-bailable offences to harass and
intimidate individuals, particularly in cases of sedition and hate speech. The Supreme Court
has taken note of these concerns and has emphasized the need to balance the right to free speech
with the need to maintain social harmony and prevent hate speech.
Difference between bailable and non-bailable offences

Basis Bailable offences Non-bailable offences

In bailable offences, the gravity of

In non-bailable offences, the gravity
Gravity the offence is lower as compared to
of the offence is higher.
non-bailable offences.

In bailable offences generally, the Sentences are higher in the case of

quantum of sentence is below or up non-bailable offences as they are
to three years. Although there are punishable with death,
Punishment
exceptions in respect of this rule. For imprisonment for life, or
example, the offence of kidnapping imprisonment which may exceed
under Section 363 of the IPC is three years or seven years.

72 -Rashi Waghmare
 bailable but is punishable by
imprisonment for seven years and a
fine.

In non-bailable offences, bail is not

In bailable offences, bail can be a matter of right, but rather it is a
Bail
granted as a matter of right. matter of the discretion of the court
of law.

In the case of non-bailable offences,

mostly the accused get bail through
a court of law. Yet there is a
In case of bailable offences, either provision under Section 437
Power to
the police officer or the court can subsection 4 that empowers the
grant bail
grant bail. police officer to grant bail while
recording reasons in writing.
Though, in reality, police officers do
not grant bail.

Refusal of bail in case of a bailable

There is no offence committed if the
offence shall amount to wrongful
Offence officer or the court does not grant
confinement under Section 342 of
bail to the accused.
IPC.

Criminal Breach of Trust(406

Kidnapping (363 IPC), Stalking IPC), Theft(379 IPC), Snatching
(354D), Dishonest Misappropriation (379A IPC), Rape (376
Examples
of Movable Property (404 IPC), Murder(302
IPC) and Cheating (417 IPC) etc. IPC) and Culpable Homicide(304
IPC) etc.

Conclusion
In conclusion, the classification of offences into bailable and non-bailable offences is an
important aspect of the criminal justice system in India. While a person accused of a bailable
offence is entitled to bail as a matter of right, the accused in a non-bailable offence has to
approach the court for bail. However, the right to bail is not absolute, and the courts must
balance the interests of society and the victim against the right of the accused to be released on
bail. The landmark cases discussed above have played an important role in shaping the
jurisprudence of bail in India.

73 -Rashi Waghmare
Module 1
Q.31. Explain the Provisions relating to Jurisdiction of Criminal Courts under Criminal
Procedure Code, 1973. [15]
Ans. Introduction
Sections 177 to 189 contained in Chapter XIII of the Criminal Procedure Code, 1973
(CrPC) deals with the jurisdiction of Criminal Courts in inquiries and trials.
Application of Chapter XIII of CrPC
 It is applicable to inquiries and trials.
 It does not apply to proceedings conducted under Chapter VIII, Chapter IX and Chapter
X of CrPC.
Jurisprudential Essence
 With regard to the size and distance from one place to the other in the country it would
be expedient and desirable that the inquiry and trial should ordinarily take place in the
vicinity of the crime.
 The place of inquiry and trial of an offence is primarily to be determined by the assertion
contained in the complaint or the police report (chargesheet) as to where and how the
offence was committed.
 In the absence of any proof to the contrary, it is presumed that the Court has jurisdiction
on the basis of the facts made out by the assertion.
 If the question of jurisdiction is raised, the trial can be commenced only after deciding
that question.
Section 177 of CrPC
 This Section states that every offence shall ordinarily be inquired into and tried by
a Court within whose local jurisdiction it was committed.
 The expression “local jurisdiction” found in this Section is defined in Section 2(j) of
CrPC which means in relation to a Court or Magistrate, the local area within which the
Court or Magistrate may exercise all or any of its or his powers under the Code.
 In the case of Emperor v. Ganga (1912), it was held that the jurisdiction of the Court to
try an offence for which cognizance under Section 177 of CrPC has been taken and the
jurisdiction of the Court shall remain unaffected by any subsequent change in the
territorial jurisdiction of the Court.
Section 178 of CrPC
 This Section deals with the place of inquiry and trial.
 This Section states that in the following cases the offence may be inquired into or tried
by a Court having jurisdiction over any of such local areas:
o When it is uncertain in which of several local areas an offence was committed.

74 -Rashi Waghmare
 o Where an offence is committed partly in one local area and partly in another.
o Where an offence is a continuing one and continues to be committed in more
local areas than one.
o Where it consists of several acts done in different local areas, it may be inquired
into or tried by a Court having jurisdiction over any of such local areas.
Section 179 of CrPC
 This Section deals with the offence triable where act is done, or consequence ensues.
 It states that when an act is an offence by reason of anything which has been done and
of a consequence which has ensued, the offence may be inquired into or tried by a Court
within whose local jurisdiction such thing has been done or such consequence has
ensued.
Section 180 of CrPC
 This Section deals with the place of trial where act is an offence by reason of relation
to other offence.
 It states that when an act is an offence by reason of its relation to any other act which
is also an offence, or which would be an offence if the doer were capable of committing
an offence, the first-mentioned offence may be inquired into or tried by a Court within
whose local jurisdiction either act was done.
Section 181 of CrPC
 This Section deals with the place of trial in case of certain offences. It states that
(1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with
murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into
or tried by a Court within whose local jurisdiction the offence was committed, or the accused
person is found.
(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court
within whose local jurisdiction the person was kidnapped or abducted or was conveyed or
concealed or detained.
(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within
whose local jurisdiction the offence was committed or the stolen property which is the subject
of the offence was possessed by any person committing it or by any person who received or
retained such property knowing or having reason to believe it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired
into or tried by a Court within whose local jurisdiction the offence was committed or any part
of the property which is the subject of the offence was received or retained, or was required to
be returned or accounted for, by the accused person.
(5) Any offence which includes the possession of stolen property may be inquired into or tried
by a Court within whose local jurisdiction the offence was committed, or the stolen property

75 -Rashi Waghmare
was possessed by any person who received or retained it knowing or having reason to believe
it to be stolen property.
Section 182 of CrPC
 This Section deals with the offences committed by letters, etc. It states that -
(1) Any offence which includes cheating may, if the deception is practised by means of letters
or telecommunication messages, be inquired into or tried by any Court within whose local
jurisdiction such letters or messages were sent or were received; and any offence of cheating
and dishonestly inducing delivery of property may be inquired into or tried by a Court within
whose local jurisdiction the property was delivered by the person deceived or was received by
the accused person.
(2) Any offence punishable under section 494 or section 495 of the Indian Penal Code (45 of
1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was
committed, or the offender last resided with his or her spouse by the first marriage, or the wife
by the first marriage has taken up permanent residence after the commission of the offence.
Section 183 of CrPC
 This Section deals with the offence committed on a journey or voyage.
 It states that when an offence is committed whilst the person by or against whom, or
the thing in respect of which, the offence is committed is in the course of performing a
journey or voyage, the offence may be inquired into or tried by a Court through or into
whose local jurisdiction that person or thing passed in the course of that journey or
voyage.
 The words “journey or voyage” do not include a voyage on the high seas or in a foreign
country.
Section 184 of CrPC
 This Section deals with the place of trial for offences triable together.
 It states that in the following cases the offences may be inquired into or tried by any
Court competent to inquire into or try any of the offences.
o The offences committed by any person are such that he may be charged with,
and tried at one trial for, each such offence by virtue of the provisions of section
219, section 220 or section 221.
o The offence or offences committed by several persons are such that they may
be charged with and tried together by virtue of the provisions of section 223.
Section 185 of CrPC
 This Section deals with the power to order cases to be tried in different sessions
divisions.
 It states that notwithstanding anything contained in the preceding provisions of this
Chapter, the State Government may direct that any cases or class of cases committed
for trial in any district may be tried in any sessions division: Provided that such direction

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 is not repugnant to any direction previously issued by the High Court or the Supreme
Court under the Constitution, or under this Code or any other law for the time being in
force.
Section 186 of CrPC
 This Section deals with the power of the High Court to decide, in case of doubt, the
district where inquiry or trial shall take place.
 It states that where two or more Courts have taken cognizance of the same offence and
a question arises as to which of them ought to inquire into or try that offence, the
question shall be decided—
(a) If the Courts are subordinate to the same High Court, by that High Court;
(b) If the Courts are not subordinate to the same High Court, by the High Court within the local
limits of whose appellate criminal jurisdiction the proceedings were first commenced, and
thereupon all other proceedings in respect of that offence shall be discontinued
Section 187 of CrPC
 This Section deals with the Magistrate's power to inquire into an offence committed
outside his local jurisdiction.
 The Magistrates of the First Class has the power to initiate action against any person
within their jurisdiction who is reasonably suspected of have committed an
offence triable by a court outside that jurisdiction.
 Once such reasonable suspicion is formed against a person, the Magistrate can:
o Inquire into the offence as if it has been committed within his local jurisdiction.
o Compel the attendance of such person to appear before him.
o Send the suspected person to the Magistrate having jurisdiction to try such
offence.
o Report the case of the concerned High Court, if there are more than one
Magistrate having jurisdiction to try the offence.
 The Magistrate has power to grant bail in respect of offences not punishable with death
or life imprisonment.
 The power given to the Magistrate under this Section is available both in respect
of cognizable as well as non-cognizable offences.
Section 188 of CrPC
 This Section deals with the offences committed outside India.
 This section provides for extra-territorial jurisdiction over Indian citizens and also over
non-citizens.
 It states that when an offence is committed outside India—
(a) by a citizen of India, whether on the high seas or elsewhere; or

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(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be
dealt with in respect of such offence as if it had been committed at any place within India at
which he may be found.
 Provided that, notwithstanding anything in any of the preceding sections of this
Chapter, no such offence shall be inquired into or tried in India except with the previous
sanction of the Central Government.
 In the case of Sartaj Khan v. State of Uttarakhand (2022) it was held that if an offence
is partly committed in India and partly committed outside India, the matter would not
come within the scope of Section 188 of the code.
Section 189 of CrPC
 This Section deals with the receipt of evidence relating to offences committed outside
India.
 It states that when any offence alleged to have been committed in a territory outside
India and received the sanction of the Central Government under the Section 188, the
Central government may direct that the copies of the following document shall be
received in evidence by the trial court:
o Copies of the deposition made.
o Exhibits procedure before-
 A judicial officer.
 A consular or diplomatic representative for that territory.

Q.32. What is the underlying Purpose of the Criminal Procedure Code, 1973 and how
does it achieve Justice System? [15]
Ans. Introduction
The Code of Criminal Procedure is also called the criminal procedure code (CrPC). This code
was enacted in 1973 and came into force on April 1, 1974. The criminal procedure code
provides a mechanism for conducting trials in a criminal case. It gives the procedure for
registering a complaint, conducting a trial and passing an order, and filing an appeal against
any order.
The main objective of this code is to provide a fair opportunity to an accused person to conduct
a fair trial according to the principle of natural justice. The provisions of this code are to
regulate the procedure for arrest and investigation, inquiry and trial of an offence under any
law governing criminal offences in the court of law.
This code contains 484 sections under 37 chapters. CRPC does not supersede any particular
law or any local law or powers or procedure directed by any such law.

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Criminal Procedure Code 1973
The Full form of CrPC is Criminal Procedure Code. The Criminal Procedure Code (CrPC) is a
procedural criminal law enacted for administering substantive law in India. The law enacted
on 1st April 1973 provides the procedure for
 The investigation of crime,
 Apprehension of suspected criminals, evidence collection,
 Determination of guilt or innocence of the person and
 Determination of punishment of the accused person.
 It also has provisions for public nuisance, prevention of offences and maintenance of
wife, children and parents.
Objectives and Purpose of Criminal procedure code (CrPC)
The code of criminal procedure laid down some objectives. These are:-
1. The main aim of this code is to provide an opportunity for a fair trial to the accused
person according to the principle of natural justice.
2. To ensure a fair trial for both the accused and the victim without curtailing anyone’s
rights.
3. To achieve a fair adjudication process by laying criteria for admissibility of evidence.
4. To prevent delaying the investigation and trial process.
5. To ensure attendance of any person concerned with a case with the various available
measures like warrant, summons, attachment of property, proclamation, etc.
6. To lay down the criminal justice system’s functioning procedure from the stage of
investigation till conviction and the process for appeal.
7. To explain the organisation of criminal courts in India.
8. To explain the role and powers of police and other authorities in the investigation and
trial process.
9. To explain the powers and jurisdiction of courts in the criminal judicial system.
Application of the Criminal Procedure Code
The criminal procedure code (CrPC) applies to India and administers criminal law in India. It’s
a machinery for defining procedures for determining the guilt or innocence of a person and
collecting evidence. It also defines jurisdiction in certain offences like offences committed by
juveniles and also deals with public nuisance, maintenance of wife, children and parents. It also
describes the powers and jurisdiction of the courts and the offences triable by them.

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Need of code of criminal procedure
The Criminal Procedure Code (CrPC) is the machinery to address the need of the criminal
justice system and ensure an effortless judicial process by defining the functions of executive
and judiciary, respectively.
The code of criminal procedure 1973 is the machinery which fulfilled the needs for:-
1. Registration of a complaint and then an FIR
2. Conducting Investigation of crime
3. Apprehensions of suspected criminals
4. Gathering of evidence
5. Determining the guilt of the accused
6. Determining the innocence of the accused person
7. Determining punishment for the guilty person.
Conclusion
CrPC provides that every person is allowed a fair trial and hearing by an independent and
unbiased Tribunal. The accused is considered innocent until proved the charges against him.
The accused has the right to be represented by his counsel, and the accused also has a right to
cross-examine the witnesses of the opposite party.
The Criminal Procedure Code and Indian penal code both lay down the foundation of the
criminal justice system in India. The enactment of these legislations led to the consolidation of
criminal laws in India. They play their role in the ineffective administration of justice. The
CrPC and IPC can be effective by applying the India evidence act 1965, a procedural law like
CrPC.
The CrPC prevents violation of the principle of natural justice and delays in the investigation
and trial process. It also ensures that there must be a fair opportunity for hearing and disclosure
of all the pieces of evidence and charges used against the accused.
Q.33. Explain briefly the constitution of criminal court under Criminal Procedure Code,
1973. [15]
Ans. Introduction
The judicial system in India is one of the most efficient judicial systems in the world and it has
been established in such a way so that it caters to the need of every person in the country. The
Indian Judiciary is well established with quite a lengthy and complex hierarchy of courts. The
judicial system is in the form of a pyramid, with the Apex Court being at the top of the
hierarchy. The courts have been created in such a manner that even a person from a remote
area can approach the courts to get their disputes resolved.

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Hierarchy Of Criminal Courts
 Supreme Court
 High Court
 Session Court
 Additional Session Judge
 Assistant Session Judge
Metropolitan Area:
 Chief Metropolitan Magistrate
 Metropolitan Magistrate
Other than Metropolitan Area
 Chief Judicial Magistrate
 Judicial Magistrate First Class
 Judicial Magistrate Second Class
Establishment And Powers Of Supreme Court And High Court
The establishment of Supreme Court is given under article 124 of the Constitution of India and
establishment of High Court is given under article 214 of the Constitution of India. As being a
Constitutional Courts there is no restrictions on the power of Supreme Court and High Court
and even the powers of High Court mention in section 28(1) of Code of Criminal Procedure.
According to section 28(1) High Court may pass any sentence authorized by law.
Establishment And Powers Of Court Of Session
The establishment of Court of Session given under section 9 and 10 of Code of Criminal
Procedure. According to section 9 Court of Session established by State government.
Appointment of District Judges
According to article 233 of the Constitution of India all district judges shall be appointed by
Governor in consultation with High Court
Powers of Court of Session:
According to section 28(2) of Code of Criminal Procedure deals with Session Judge or
Additional Session Judge may pass any sentence authorized by law and if Session Judge or
Additional Session Judge pass sentence of death then such sentence shall be subject to
confirmation of High Court.
According to section 28(3) Assistant Session Judge may pass any sentence authorized by law
except the sentence of death, life imprisonment or imprisonment more than 10 years.
Establishment, Appointment And Powers Of Court Of Judicial Magistrate

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Section 11 of Code of Criminal Procedure deals with the establishment of Court of Judicial
Magistrate. According to section 11 Court of Judicial Magistrate established by state
government.
Appointment of Court of Judicial Magistrate:
The appointment of Judicial Magistrate are given under article 234 of the Constitution of India.
According to article 234 all judges other than district judges shall be appointed by the Governor
in consultation with State Public Service Commission and the High Court.
Now according to section 12 of Code of Criminal Procedure any Judicial Magistrate first Class
shall be appointed as Chief Judicial Magistrate by High Court.
Powers of Court of Judicial Magistrate
The power of Chief Judicial Magistrate given under section 29(1). According to section 29(1)
Chief Judicial Magistrate may pass any sentence authorized by law except the sentence of
death, life imprisonment and imprisonment more than 7 years.
Section 29(2) of Code of Criminal procedure deals with Judicial Magistrate 1st class may pass
any sentence authorized by law except the sentence of death, life imprisonment and
imprisonment more than 3 years and he may also impose fine up to 10,000 Rs and in
Maharashtra and Rajasthan they may impose fine up to Rs.50,000/-
Section 29(3) talks about Judicial Magistrate 2nd Class may pass any sentence authorized by
law except the sentence of death, life imprisonment and imprisonment more than 1 year and he
may also impose fine up to 5,000 Rs and in Maharashtra he may impose fine up to Rs.10,000/-
Establishment, And Powers Of Court Of Metropolitan Magistrate
The establishment of Court of Metropolitan Magistrate is given under section 16 of code of
Criminal Procedure and according to section 17 any Metropolitan Magistrate shall be appointed
as a Chief Metropolitan Magistrate by High Court.
Powers of Court of Metropolitan Magistrate
According to section 29(4) the Chief Metropolitan Magistrate and Metropolitan Magistrate
shall possess the same power of Chief Judicial Magistrate and Judicial Magistrate First Class
i.e. Chief Metropolitan Magistrate may pass sentence of imprisonment up to 7 years and
Metropolitan Magistrate may pass sentence of imprisonment up to 3 years and fine up to 10,000
Rs and in Maharashtra and Rajasthan Rs.50,000/-
Power And Function Of Executive Magistrate
Section 20 of Code of Criminal Procedure deals with Executive Magistrate. In every district
and in every Metropolitan area State Government may appoint the executive Magistrate and
shall appoint one of them to be District Magistrate.
The function of Executive Magistrate is given under section 129,130,131 and 144 in Code of
Criminal Procedure, 1973.

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Conclusion
Now I would like to conclude that the powers of Criminal Courts are different but Chief
Metropolitan Magistrate possess the same power of Chief Judicial Magistrate and Metropolitan
Magistrate possess the same power of Judicial Magistrate First Class. We also see a Sessions
Judge or Additional Sessions Judge may pass any sentence but in case of sentence of death it
shall be subject to the confirmation of High Court under section 366 of the Code of Criminal
Procedure.

Q.34. Explain the procedure prescribe for the trial of an offence before the Court of
Session. [15]
Ans. Introduction
The trial before a Court of Session is a fundamental pillar of our legal framework,
particularly when dealing with the most serious criminal cases. This judicial process ensures
that justice prevails in matters such as murder, rape, and other grave offences. The trial before
a Court of Session serves as the cornerstone for fair, meticulous, and lawful examinations of
evidence and testimonies, fostering public confidence in the legal system.
A “trial before a Court of Session” refers to a legal proceeding in which serious criminal cases,
such as murder or rape, are heard and adjudicated by a specialised higher court known as the
Court of Session.
This court conducts formal legal proceedings, involving the presentation of evidence, witness
examination and legal arguments, ultimately culminating in a verdict of guilt or innocence. If
the accused is found guilty, the Court of Session has the authority to impose appropriate
sentences. The process ensures fair and thorough adjudication of major criminal offences under
the jurisdiction of this court.
Provisions in CrPC Dealing with Trial Before a Court of Session in CRPC
1. Parties in Trial Before a Court of Session (Section 225)
In a trial in a court of session, there are two main parties involved. The prosecution is handled
by a public prosecutor. The accused person has the right to choose a defence lawyer. If the
accused cannot afford a lawyer, the court will provide one at the state’s expense. Before the
trial begins, the accused is given copies of important documents such as the police report and
FIR (First Information Report).
2. Opening the Case (Section 226)
The public prosecutor begins the case by explaining the accusations against the accused. They
briefly outline the evidence they plan to use to prove the guilt. The prosecutor’s job is not to
guarantee a conviction but to present the case’s facts to the tribunal, which will make the
judgment.
3. Discharge of the Accused in Trial Before a Court of Session (Section 227)
After hearing from both sides, if the court believes there is insufficient reason to proceed
against the accused, they will release the accused and provide the reasons for doing so. This

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stage does not involve witness examination but allows both sides to present their arguments for
either filing charges or discharging the accused.
4. Framing of Charges for Trial Before a Court of Session (Section 228)
After listening to both parties in a trial before a Court of Session, if the court believes the
accused may have committed the offence:
If the offence can only be tried in the Court of Session, the court frames the charges in writing.
If the offence is not exclusively for the session’s court, the court frames charges and transfers
the case to the Chief Judicial Magistrate. It’s important to note that when framing charges under
Section 228 of the Criminal Procedure Code, the judge doesn’t need to provide detailed
reasons. Only a prima facie case is considered at this stage. This means that the judge doesn’t
have to determine if the case is beyond a reasonable doubt, as clarified by the Supreme Court
in the case of Bhawna Bai v. Ghanshyam & Ors.
In the case of Rukmini Narvekar v. Vijaya Satardekar, the court ruled that the accused could not
present evidence at the charge framing stage. Only materials specified in Section 227 at the
time of framing the charges are considered.
5. Explaining the Charge and Inquiry About Plea (Section 228(2))
The details of the charge must be explained to the accused, allowing them to either admit guilt
or request a trial. In the case of Banwari v. State of UP, the court ruled that not reading or
explaining the charge to the accused doesn’t affect the trial unless it’s proven that not following
Section 228 has harmed the accused.
6. Conviction on a Guilty Plea in Trial Before a Court of Session (Section 229)
If the accused pleads guilty, the judge records the plea and can choose to convict the accused.
As seen in Queen Empress v. Bhadu, the guilty plea must be clear; otherwise, it’s treated as a
plea of not guilty. Section 229 specifies that if an accused pleads guilty, the judge can convict
them at their discretion and record it.
However, the court cannot convict the accused on a guilty plea when the offence carries a
penalty of death or life imprisonment. In Hasaruddin Mohommad v. Emperor, the court
emphasised that it’s hesitant to convict someone accused of an offence with the death penalty
or life imprisonment based solely on a guilty plea. The accused’s right to appeal is restricted
by Section 375 if they are convicted based on a guilty plea.
7. Setting a Date for Prosecution Evidence (Section 230)
If the accused refuses to plead, doesn’t plead, claims to be tried or isn’t convicted under Section
229, the judge schedules a date for the examination of witnesses or may order the appearance
of witnesses or the production of documents or things.
8. Evidence for Prosecution (Section 231)
On the scheduled date, the judge gathers all the evidence to support the prosecution’s case.

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The judge may, at their discretion, allow the cross-examination of a witness to be postponed
until after other witnesses have been examined or recall a witness for further cross-
examination.
In the case of Ram Prasad v. State of U.P, the Supreme Court ruled that if the court finds the
prosecution failed to present witnesses for unreasonable or improper reasons, it can draw a
negative conclusion against the prosecution.
The court noted in State of Kerala v. Rasheed that when deciding an application under Section
231(2), a balance should be maintained between the rights of the accused and the prosecution’s
obligation to present evidence. Several factors should be considered, including the risk of
undue influence, threats, the potential for later witnesses to adjust their testimony to undermine
the defence and the memory of witnesses whose direct examination is complete.
9. Prosecution’s Arguments in Trial Before a Court of Session (Section 314(2))
After all witnesses have been heard, the prosecution presents a summary of their oral
arguments. A copy of these arguments is provided to the opposing party.
10. Examination of the Accused
The accused is questioned without being placed under oath. This process allows the accused to
clarify the circumstances alleged by the prosecution.
11. Acquittal in Trial Before a Court of Session (Section 232)
If, after hearing from both sides, the judge concludes that the accused did not commit the
offence, an order of acquittal is recorded.
12. Commencing the Defence (Section 233)
If the accused is not acquitted, they are asked to present their defence. The court has the
authority to summon or question any person as a court witness at any stage.
13. Arguments (Section 234)
After recording the defence, the prosecutor summarises their case and the accused or their
representative is given the opportunity to respond. If the defence raises any legal points, the
prosecutor may be allowed to make additional submissions.
14. Judgment of Acquittal or Conviction in Trial Before a Court of Session (Section
235)
After hearing arguments from both sides, the court issues a judgment of either acquittal (not
guilty) or conviction (guilty). In the case of Santa Singh v. State of Punjab, the Supreme Court
emphasised that the judge should first decide on a verdict of either conviction or acquittal. If
the accused is convicted, they are given an opportunity to present their side regarding the
sentencing before the court decides the punishment.
In Bacchan Singh v. State of Punjab, the court ruled that this section allows for a two-step trial
process. It grants the accused the right to a pre-sentence hearing, which might not be directly
related to the specific crime being investigated but can impact the choice of punishment.
15. Previous Conviction (Section 236)

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When a prior conviction is alleged, as specified in subsection (7) of Section 211 and the accused
does not admit to the previous conviction as stated in the charge, the judge may collect evidence
related to the alleged prior conviction and make a record of their findings.
It’s important to note that the judge should not read the charge or ask the accused to plead to it
and the prosecution should not mention the previous conviction in any evidence until the
accused has been convicted under Section 235 or Section 239.
Conclusion
A trial before a Court of Session is a vital component of our legal system. It’s where serious
criminal cases are heard, such as murder and rape, ensuring justice is served. The trial before a
Court of Session guarantees that evidence is carefully examined, witnesses are heard and legal
procedures are followed. The Court of Session, as a higher court, plays a crucial role in
delivering a fair and impartial verdict. This not only protects the rights of the accused but also
maintains public trust in the legal system.
Moreover, the Court of Session helps keep our communities safe by addressing and deterring
major crimes. It upholds the principle of due process, making sure everyone is treated fairly
under the law. In essence, it is a cornerstone of a just and orderly society, providing a platform
for justice and ensuring the rule of law prevails.
Short Notes
Q.1 Summary Trial. [5]
Ans. In the adversarial judicial system, each side is represented by an advocate before an
impartial arbiter who seeks to ascertain the truth and provide a decision in accordance with it.
In a trial, the court makes a decision after hearing arguments from both sides and providing a
fair chance to question, re-question, and cross-examine the witnesses presented in court.
Trials can be of three different types: warrant, summons, and summary. Summary trials are
used to speed case resolution and decrease the load on the judiciary. They are listed in Chapter
XXI of the Code of Criminal Procedure, 1973. In a summary trial, the matter is tried and
decided all at once. The rules governing summary trials are covered in Sections 260 to 265 of
the Code of Criminal Procedure, 1973 (Cr.P.C.)
Any Chief Judicial Magistrate, Metropolitan Magistrate, or Magistrate of the First Class is
granted the authority to conduct a summary trial under Section 260 of the Code. A Magistrate
of the First Class must, however, get special permission from the High Court in order to try a
case expeditiously. According to Section 261, any High Court may authorise any Magistrate of
the Second Class to try any offence that is only punishable by a fine or by imprisonment for a
term not to exceed six months with or without a fine, as well as any attempt or aiding and
abetting of such offences, in a summary manner.
The following offences may be tried summarily by a magistrate who has the authority to do so,
depending on what they deem appropriate −
 Crimes that are not punished by death, life in prison, or a sentence more than two years.
 Theft-related offences covered by sections 379, 380, and 381 of the Indian Penal Code
(IPC), when the value of the taken property is less than Rs. 2000.

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  Under Section 411 of the IPC, theft-related offences that involve receiving or holding
onto stolen goods with a value of no more than Rs. 2,000.
 Helping to hide or dispose of any stolen item in accordance with section 414 of the IPC,
provided that the value of such property is not greater than Rs. 2,000.
Conclusion
The criminal procedure in India is governed by two twin statutes. The Code of Criminal
Procedure, 1973 is the procedural law, and the Indian Penal Code, 1860 is the substantive law.
Any criminal justice system's main goal is to guarantee that people have the chance to
participate in a free and fair trial. According to the seriousness of the offences, trials are
separated into three categories and take years to complete. Summary trials provide people a
chance to obtain justice for even the slightest grievances in short span of time.
Q.2. Fair Trial. [5]
Ans. A fair trial would imply a trial before an impartial judge, a fair prosecutor, and a judicially
calm setting. A fair trial is one in which bias or prejudice for or against the accused, the witness,
or the cause under trial is eradicated. In a trial with the primary purpose of learning the truth,
all parties concerned, including the accused, victims, and society at large, must be treated
equally. Everyone has the right to a fair trial in criminal prosecution. Denying the accused fair
trial results in injustice for them, the victim, and society.
Under our Constitution and international treaties and conventions, the right to a fair trial is a
fundamental human right. Without a fair trial, innocent individuals are convicted, which
undermines the basics of the rule of law and the public agrees with the justice gadget. The right
to a fair trial is assured using Article 6 of the Human Rights Act. The rule of law makes sure
the management of justice refers to the fair trial of convicts.
Presumption of innocence is an important factor to conduct a fair trial as it prevents wrongful
convictions. This presumption of innocence is based on the Blackstone’s ratio, which is the
idea that “It is better that ten guilty persons escape than that one innocent suffer”. Everyone is
equal before the eyes of the law which is an important principle which forms the basis of
judicial proceedings across the world. The law treats everyone equally and this principle is
enshrined in various provisions of the Indian Constitution. Article 14 of the Indian Constitution
exclusively deals with the Right to Equality. Trials are an indispensable part of any proceeding.
Conducting fair trails is an important aspect of the law which ensures equality.
The proper a fair trial has been identified the world over as a fundamental human right and
nations are required to respect it. In Zahira Habibullah Sheikh and ors. Vs. The state of Gujarat
and ors The Supreme Court of India stated that "everyone has an innate right to be treated fairly
in a criminal prosecution." Denial of a fair trial is an injustice to both the accused and the
victim, as well as to society. Article 22 of the Indian Constitution provides that no person can
be detained in custody without giving proper information.
The Right to get a fair trial is an essential right of every accused. The concept of fair trial brings
confidence in the public and the people start to believe in the judiciary. It is necessary to follow
every above-mentioned aspect in order to ensure that the trial is free from biases. These rights
are not just domestic rights but also the various international conventions guarantee these
rights. Thus the concept of a fair trial is an essential aspect of every proceeding.

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Q.3. Warrant cases and summon cases [ Short note] [5]
Ans. 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. Chapter XIX of the Code of Criminal Procedure, 1973 provides a framework
for the procedures related to warrant cases that are triable by Magistrates.
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.
Warrant cases under Criminal Procedure Code play a crucial role in the criminal justice system,
addressing offences that are deemed serious, grave, and punishable by death, life
imprisonment, or imprisonment exceeding two years. These cases are typically cognizable
offences where the police have the authority to make arrests without a warrant.
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.
The procedures and stages of trial in warrant cases are governed by Chapter XIX of the Code
of Criminal Procedure, ensuring the fair and just resolution of these serious offences. The
accused has the right to examine and cross-examine witnesses, and the Magistrate is
responsible for ensuring compliance with the provisions, including providing copies of relevant
documents to the accused.
Q.4. Compoundable offence.[ Short Note] [5]
Ans. 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 modest, dishonest misappropriation
of property amongst others, etc.

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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.
Q.5. Review [5]
Ans. In criminal law, review is a legal remedy that allows a party to challenge the correctness
of a judicial order passed against them. The procedure for filing a review in criminal law is
provided under Section 397 of the Code of Criminal Procedure, 1973.
According to Section 397, a person can apply for a review of any order made in any criminal
proceeding if he considers himself aggrieved by the order. The review can only be sought on
the grounds of discovery of new and important matter or evidence, which was not within the
knowledge of the applicant or could not be produced by him in the original proceedings
It is important to note that the scope of review under Section 397 is limited and does not extend
to re-examination of the evidence or re-appreciation of facts that were considered by the court
in the original proceedings. The review proceedings are summary in nature and are not intended
to be a substitute for an appeal. They are designed to correct judicial errors that may have
occurred in the original proceedings, and not to re-adjudicate the matter afresh.
The power of review is distinct from the Court’s power to hear appeals, i.e. the appellate
jurisdiction. When hearing a review petition filed against its own order or judgment, the Court
does not rehear the case at hand, as it would in an appeal. The purpose of a review petition is
limited to remedying an apparent error or the resultant grave injustice that has been the
consequence of a decision of the Supreme Court. The Court is thus restricted in the exercise of
the power of review to cases where there is an error apparent on the face of the record (criminal
cases) or in accordance with the provisions of Order XLVII of the Code of Civil Procedure,
1908.
Q.6. Court of Session [5]
Ans. The Court of Sessions is said to be the highest court of criminal jurisdiction in a district.
It is also known as the court of first instance to try serious criminal offences. Serious criminal
offences mean offences whose punishment is imprisonment exceeding seven years including
life imprisonment. The Court of Sessions, as established under the Code of Criminal Procedure,
1973 (CrPC), stands as a cornerstone in the criminal justice system of India.
Under Section 9 of the CrPC, the Court of Sessions is instituted in sessions division by the
State Government, serving as a court of criminal jurisdiction. As per Section 7 of CrPC, every
state shall be a sessions division or shall consist of sessions divisions; and every session
division shall, for the purposes of CrPC, be a district or consist of districts. The presiding
officer, known as the Sessions Judge, is appointed by the High Court under whose jurisdiction
that sessions division falls. The composition also includes additional judges, if appointed,
fostering a localized approach to justice delivery.
The High Court has the power to appoint Additional Sessions Judges and Assistant Sessions
Judges to exercise jurisdiction in a Court of Session. The Sessions Judge of one sessions
division may be appointed by the High Court to be also an Additional Sessions Judge of another
division, and in such case, he may sit for the disposal of cases at such place or places in the

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other division as the High Court may direct. The Court of Sessions shall ordinarily hold its
sitting at such place or places as the High Court may, by notification, specify. But, if the Court
of Sessions is of opinion, it will place its sitting as per the general convenience of the parties
and witnesses at any other place in the sessions division.
Territorial jurisdiction, determining the court based on where the offence occurred, is
fundamental. Section 26 of the CrPC specifically mentions that the Court of Sessions can try
any offence under the Indian Penal Code, 1860 (IPC). However, the jurisdiction of the Sessions
Court extends to offences punishable with imprisonment for a term exceeding seven years
under Section 28 of the CrPC.
Q.7. Framing of Charge [Short note] [5]
Ans. Chapter XVII of the CrPC deals with ‘Charges.’ Section 228 of the CrPC deals with
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.
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.

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  Legal Standards: Charges should meet the legal standards for each specific offence,
ensuring accuracy and fairness.
Q.8. Charge [5]
Ans. 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.’
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.
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. Key Elements in Section 211 of the CrPC: This
section specifies that every charge should include:
1. The offence the accused is charged with.
2. If the offence has a specific name under the law, it should be described by that name.
3. The definition of the offence under the relevant law if it doesn’t have a specific name.
4. The law and the section of the law under which the offence is alleged to have been
committed.
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.
Q.10. Search and seizure [5]
Ans. The term search' means an action taken by the government to go through or look after or
examine a place, person, object, area, etc. in order to find any concealed evidence or for the
purpose of finding evidence of the crime. The search of a person or place should be carried out
under the valid authority of law and there should be a nexus between the crime and search, it
cannot be a random search.
A search warrant is a written authority, which is issued by a judge or magistrate to a police
officer or any authorized person to conduct a search of a person, place and vehicle, etc. The
police officers are cautioned to use search warrant with little care and not abuse their power.

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Section 165 of CrPC provides the circumstances and the way in which a search is carried out
by a police officer.
A “seizure” is a forceful action that abruptly dominates, seizes, removes, or overpowers an
object or a person.
In the case of V. S. Kuttan Pillai v. Ramakrishnan, the procedural validity of search warrants
was upheld, in which it was held that a search for the premises occupied by the accused did not
in any way force him to provide evidence against himself and was thus not in violation
of Article 20(3) of the Indian Constitution.
In the case of Ramesh vs Laxmi Bai, It was held that a son in his father’s custody should not be
held or considered as unlawful detention, and, accordingly, no search warrant could be issued
for the same.
The authority to search and seizure is an essential power for the betterment of society; Search
and Seizure is an extremely subjective mechanism by nature, and specific procedural
limitations have been placed on the exercise of power. The officers empowered to perform a
search and seizure have specific powers and reporting to a senior official responsibly is required
at each level so that no officer acts in an arbitrary manner.
Q.11. Cognizable and Non-Cognizable Offence.
Ans. The Criminal Procedure Code, 1973 (CrPC) defines the term cognizable offence
under Section 2(c). Cognizable crimes are those for which the police have the authority to
arrest the accused without a warrant or a magistrate’s approval. The consequences of these
crimes are horrible and more severe as opposed to non-cognizable offences.
The First Schedule of the Code outlines how offences are categorized and whether a certain
offence fits into the category of a cognizable offence or not. Such offences include rape,
murder, kidnapping, theft, and abduction, among others. These offences put society at danger
and undermine its peace and harmony.
After a First Information Report (FIR) is filed, the investigation into crimes that are punishable
by law begins. It is information that is provided to the police officer orally or in writing and is
regarded as proof gained in cases with cognizable elements. Additionally, it strengthens the
prosecution’s case. Section 156 of the CrPC gives police officers the authority to look into a
crime that is legally actionable.
Section 2(l) of the CrPC defines non-cognizable offences are those offences for which a police
officer cannot arrest the accused without a warrant and cannot initiate an investigation without
the permission of a court. A non-cognizable offence is a criminal act that is typically less serious
in nature.
Section 155(2) states that the police require permission from the Magistrate to file a FIR for
non-cognizable offences. Under Section 158, a police report must be submitted to the
Magistrate to inform them of the ongoing investigation for both cognizable and non-cognizable
offenses.
If someone approaches a police officer to report a non-cognizable offense, the officer will make
a note of the information in a book at the police station. However, the officer cannot take
immediate action to investigate or make an arrest without the direction of a Magistrate. The
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Magistrate, as per Section 159, has the authority to decide whether the investigation should
proceed and can issue directives accordingly.
Q.12.Warrant of Arrest.
Ans. A warrant is a legal document or authorization issued by a judge, competent officer, or
magistrate, permitting the performance of an action that would otherwise be considered
unlawful and may violate human rights.
It also provides protection to the person executing the warrant from any potential harm while
carrying out the specified act. This written instrument is issued by the court to demand the
presence, arrest, or search of a person or location as required.
Essential Elements of a Warrant
Section 70 of the Criminal Procedure Code, 1973 (CrPC) outlines the essential elements of
a warrant. A warrant is a written authorization issued by a Magistrate, and it must be embossed
with the court’s seal.
The key components of a warrant, as per the CrPC, are as follows:
1. Form and Writing: The warrant must be in writing, meaning it must be documented
in a written format and not merely verbal.
2. Signature of a Magistrate: The warrant must be signed by a Magistrate, who is a
judicial officer with the authority to issue such orders.
3. Seal of the Court: The warrant should bear the official seal of the court from which it
is issued. The court seal serves as a mark of authenticity and authority.
As per CrPC, the content of a warrant must include essential information such as the
identification of the person to be arrested or subjected to the warrant’s action, specifying the
offence or purpose for which the warrant is issued to ensure a clear legal basis for the person’s
apprehension or action.
Types of Warrants
In CrPC, there are four major types of warrants issued by courts:
1. Arrest Warrant: This is a written order issued by a judge or magistrate, supported by
a sworn affidavit, authorizing the arrest and custody of a person accused of committing
a specific offense. It is required when an offense occurs outside the direct sight of a
police officer, ensuring a lawful arrest based on reasonable cause.
2. Search Warrant: A search warrant is an order granted by the court, based on probable
cause provided in a sworn affidavit, allowing law enforcement officials to search a
particular location for evidence related to a specific offense.
3. Bench Warrant: When a defendant fails to appear for a scheduled court appearance, a
bench warrant may be issued as an alternative to an arrest warrant. It directs law
enforcement to bring the person before the court.
4. Execution Warrant: This type of warrant allows the implementation of a death
sentence against a person convicted of a capital crime. It specifies the time and location

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 for the execution, resembling an arrest warrant in format but with a drastically different
outcome.
Q.13. Complaint
Ans. The term “complaint” refers to any assertion made before a magistrate, either orally or in
writing, according to the code of criminal procedure. It is done without a police report but with
the intention of initiating action under this Code against some person, known or unknown, who
has committed an offence.
Essentials of the complaint
 The complaint must relate to the commission of an offence.
 The complaint may be either written or oral.
 The complaint must be made to the Magistrate.
 The complaint can be made by any person whether known or unknown.
 The complaint must be made with a view to taking action under the CrPC.
 Complaint is one of the modes whereby a Magistrate can take cognizance of an offence.
 A mere statement to a Magistrate by way of information, without asking the Magistrate
to take action, is not a complaint.
To whom a complaint can be made
Section 190 (1) of CrPC empowers Judicial Magistrate of First Class or Judicial Magistrate
Second Class specifically empowered by the Chief Judicial Magistrate to take cognizance upon
receiving a complaint of facts which constitute an offence.
Necessary Conditions for a Complaint
 Following are the necessary conditions for a complaint:
o There must be some allegation against a known or unknown person.
o Such an allegation must be made verbally or in writing.
o It must be made before a Magistrate.
o It must be made with the object that the Magistrate should take action.
Conclusion
Section 203 of the CrPC holds significant importance in the process of filing a complaint before
a Magistrate. This section grants the Magistrate the power to examine the complaint and the
evidence presented by the complainant and witnesses under Sections 200 and 202.
The Magistrate’s crucial duty is to apply his mind to determine whether there are sufficient
grounds to proceed with the case. If the Magistrate finds that a prima facie offence is made out
and there is enough evidence supporting the allegations, he issues the process against the
accused under Section 204.

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Q.14. Victim
Ans. A Victim is defined as a person who has suffered harm, either physical or mental injury,
emotional suffering, economic loss or violation of their fundamental rights, through acts or
omissions considered to be violative of Indian criminal laws including those laws that prescribe
criminal abuse of power. According to the Indian legal framework, the term victim is defined
under Section 2(wa) of the CrPC, 1973 as a person who has suffered any loss or injury caused
by reason of the act or omission for which the accused person has been charged and the
expression victim includes his or her guardian or legal heir. Although, this definition suffers
from obvious insufficiencies.
Victim's rights can be classified in to following classes:
1. Right to be treated with self-respect
2. Right to notification.
3. Right to be present.
4. Right to be heard.
5. Right to rational protection from terrorization and injury.
6. Right to restitution.
7. Right to information.
8. Right to compensation especially for crimes of violent nature.
9. Right to speedy proceedings
10. Rights to privacy

In our Indian criminal justice system, a victim suffers everyday as the crime is committed
against him/her and also because he/she has to undergo a lot of manipulation of the existing
system. Whereas, the person who is found guilty is sheltered, nursed, lighted, and entertained
in prison for which the state gives the expenditure from the taxes that the victims of crime are
not provided with. Our Constitution of India is considered to be the supreme law of the land
and the mother of all existing laws. The Indian Constitution includes some provisions for
victim's rights, their protection, and respects the idea of victim compensation. Article 14 and
Article 21 inculcates some vital fundamental rights that are to be read with Directive
Principles of State Polices mentioned in Articles 39A, 41, 46, and 51C.

As per Article 39A the state offers free legal assistance and guarantee for promoting justice
on the grounds of equal opportunity. Article 41 of the Indian Constitution is relevant to the
concept of victimology in a very broad manner as it commands inter alia so that the state
might start making provision to secure public support in cases of incapacitation and also in
cases of unjustifiable want

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Q.15. Inquiry
Ans. The term “inquiry” within the context of the Code of Criminal Procedure (CrPC) refers
to any examination, other than a trial, conducted by a Magistrate or the Court. Section 2(g) of
the Code of Criminal Procedure 1973 provides the legal definition of “inquiry.” It is an integral
step in the criminal justice process, following the investigation and preceding the trial.
According to the CrPC, the responsibility for conducting the inquiry lies with either the
Magistrate or the Court itself. This stage serves the crucial purpose of determining whether the
case should proceed to trial and aims to unearth the truth surrounding the facts of the case. The
inquiry under CrPC typically initiates at the commencement of charge framing, paving the way
for subsequent trial proceedings.
The Object of the Inquiry under CrPC
The purpose of an inquiry under the Code of Criminal Procedure is multifaceted, encompassing
a thorough examination of events and incidents associated with a particular offence. It extends
to individuals involved in the events and their insights into the incident or any relevant
occurrences. In essence, an inquiry under CrPC serves as a foundational element within the
framework of the CrPC, with its primary objective being the extraction of valuable information
essential for establishing the criminal nature of the alleged offence.
Types of Inquiry under CrPC
The Code of Criminal Procedure, 1973 outlines six distinct types of inquiries, each serving
specific purposes within the legal framework:
Judicial Inquiry
A judicial inquiry under CrPC is initiated in matters of public concern and it is conducted by a
Judge appointed by the government. The primary objective is to investigate issues that are of
significant public importance from a legal standpoint. This type of inquiry ensures an impartial
and legal examination of matters impacting the public.
Non-judicial Inquiry
Also known as an administrative inquiry, it refers to an inquiry not conducted for the purpose
of enforcing the law. Non-judicial inquiries are typically aimed at investigating administrative
matters, internal processes or issues that do not directly involve legal enforcement. These
inquiries are often carried out within an organisational or administrative context.
Preliminary Inquiry
Conducted before a trial, a preliminary inquiry under CrPC aims to determine the criminal
nature of the offence and decide whether a trial should proceed. This type of inquiry serves as
an initial assessment to establish whether there is enough evidence to warrant a criminal trial.
It helps in ensuring that legal proceedings are initiated only when there is a reasonable basis to
do so.
Local Inquiry
Governed by Section 148 of CrPC, it involves the deputation of a subordinate magistrate to
conduct an inquiry in a local context. Local inquiries are conducted to gather information

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specific to a particular locality. The magistrate may issue instructions to guide the subordinate
magistrate during the inquiry, ensuring a thorough examination of the local aspects of the case.
Inquiry into Offence
This type of inquiry under CrPC focuses specifically on gathering information related to the
offence committed. The inquiry into the offence lays the foundation for the trial, providing a
comprehensive understanding of the nature and circumstances of the alleged criminal activity.
It helps in framing charges and preparing for the subsequent trial.
Inquiry into Matter Other Than Offence
Encompasses inquiries that extend beyond the specific offence under consideration. This type
of inquiry under CrPC may involve general investigations or examinations into matters
unrelated to a particular offence. It allows for a broader scope of inquiry beyond the confines
of a specific criminal act.
These varied types of inquiries reflect the flexibility and comprehensiveness of the legal system
in addressing different aspects of justice, ranging from public concerns to administrative
matters and specific offences. Each type of inquiry plays a crucial role in ensuring a fair and
just legal process.
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