Law Reading For Executive Magistrate Volume I

Readings in Law
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Volume-II
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Lal Bahadur Shastri
National Academy of Administration,
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READINGS IN LAW
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Lal Bahadur Shastri National Academy of Administration,
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Contents
Criminal procedure Code
(1-156)
1. Executive Magistrates -Their Functions & Powers

under the Cr. P.C. 1973- A brief outline 1
D. Banerjea
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2. Powers of Executive Magistrate under Cr. P.C. 1973
(Act-II of 1974) to deal with "Law & Order" Problems 11
D. Banerjea
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3. Power of Executive Magistrate under Cr. P.C. at a glance 19
D. Banerjea
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4. Code of Criminal Procedure - Introductory Concepts 47
D. Banerjea
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5. Police Investigation - an outline 58
D. Banerjea
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6. Bail 66
D. Banerjea
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7. Test Identification Parade 78
D. Banerjea
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8. Police Report 83
D. Banerjea
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9. Inquest - Principles & Procedures 88
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D. Banerjea
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10. Inquest Report u/s 176 Cr. P.C. - a proforma 99
containing broad guidelines
D. Banerjea
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11. Inquest - Skill Oriented Task Exercise

104
D. Banerjea
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12. Procedure relating to Criminal Trials
106
D. Banerjea
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13. Stages of Security Proceedings 112
D. Banerjea
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14. Public Nuisance- Power of Executive Magistrates to deal
115
with them under the Code of Criminal Procedure
D. Banerjea
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15. Urgent cases of Nuisance or apprehended danger- 124
Section- 144 Cr. P.C.
D. Banerjea
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16. Problem Solving Exercise
137
D. Banerjea
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17. Order U/s 133 Cr. P.C. 138
D. Banerjea
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18. Order u/s 144 Cr. P.C. - A specimen form 141
D. Banerjea
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19. Order u/s 144 Cr. P.C. 142
D. Banerjea
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20. Order u/s 145 Cr. P.C. 147
D. Banerjea
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21. Civil Suit and Proceeding u/s 145 Cr. P.C. - their interface 148
D. Banerjea
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22. Search- an outline
152
D. Banerjea
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B. Law of Evidence
(157-227)
1. The Indian Evidence Act, 1872- An introduction 157

(a compilation) - Part-I
D. Banerjea
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2. Examination of Witnesses 171
D. Banerjea
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3. Burden of Proof 179
D. Banerjea
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4. Claim of Privilege 183
D. Banerjea
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5. Admission and Confession 188
D. Banerjea
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6. Dying Declaration 194
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D. Banerjea
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7. Appreciation of Evidence- an outline 207
D. Banerjea
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8. Evidence Part-II 213
D. Banerjea
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9. Affidavit 217
D. Banerjea
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10. Presumptions- at a glance 223
D. Banerjea
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EXECUTIVE MAGISTRATES - THEIR FUNCTIONS AND POWERS

UNDER THE CODE OF CRIMINAL PROCEDURE, 1973 -
A BRIEF OUTLINE
I. Scheme of Separation of the Judiciary from the EXECUTIVE
In pursuance of the scheme of separation, two categories of

Magistrates have been created. They are -
(i) Judicial Magistrates.
(ii) Executive Magistrates.
II. Broad Division of the Magisterial Functions
Judicial Magistrates are under the control of the High Court and
Executive Magistrates are under the control of the State Government.
Broadly speaking, such functions of a Magistrate, as are

essentially judicial in nature have been entrusted to the Judicial
Magistrates while functions which are executive or administrative in
nature have been allotted to the Executive Magistrates.
III. Revised set-up of Criminal Courts
Executive Magistrates are Criminal Courts within the meaning of

the Code vide Sec. 6 (iv) Cr.P.C.
When an Executive Magistrate acts judicially, say for instance,

when he holds an inquiry u/s 116 Cr. P.C. in connection with a security
proceeding u/s 107 Cr.P.C. he functions as a court but when he does
something purely administrative or executive in nature, he does not
perform the role of a court. When an executive Magistrate, in exercise of
the power vested in him u/s 129 Cr.P.C. commands an unlawful
assembly to disperse, he does not do so in the capacity of a Criminal
Court.
IV. Appointment of Executive Magistrates
Executive Magistrates are to be appointed by the State

Government u/s 20 (1) Cr. P.C.
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Executive Magistrates may be appointed not only for every district

but also for every metropolitan area vide Sec.20(1).
V. Absence of gradation amongst the Executive Magistrates
Unlike the Judicial Magistrates, the Executive Magistrates have

not been graded as Executive Magistrate, First Class and Executive
Magistrates, Second Class.
VI. Division of Executive Magistrates
The Executive Magistrates may, however, be divided under the

following five heads:-
(1) District Magistrates - Sec. 20(1).
(2) Additional District Magistrate - Sec. 20(2).
(3) Sub-Divisional Magistrates - Sec. 20(4).
(4) Subordinate Executive Magistrates - Sec.20(1).
(5) Special Executive Magistrates - Sec. 21.
VII. Subordination of Executive Magistrates
(a) All Executive Magistrates, other than Additional

District Magistrates, employed in a district, are
subordinate to the District Magistrate.
(b) All Executive Magistrates attached to a Sub-Division

are subordinate to the Sub-Divisional Magistrate.
(c) Additional District Magistrates are not subordinate to

the District Magistrate. The ADM is, however, an
officer below the rank of DM.
REFERENCE: SEC.23(1)
VIII. Territorial Jurisdiction of the Executive Magistrates
Their jurisdiction extends throughout the district unless it is

restricted. Such restriction may be imposed by the District Magistrate by
defining the local limits of each Executive Magistrate. This authority of
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the District Magistrate is, however, subject to the control of the State
Government vide Sec.22(1) read with Sec. 22(2) Cr. P.C.
IX. Distribution and Allocation of Business
District Magistrate is empowered to distribute business among the

Executive Magistrates subordinate to him and also to allocate business
to the Additional District Magistrates vide Sec. 23(2).
In this context, it may be remembered that all or any of the powers

of a District Magistrate under the Code may be conferred upon the
Additional District Magistrate by the State Government vide Sec. 20(2).
X. Power of Arrest
An Executive Magistrate, within his local jurisdiction, may himself

arrest or get arrested in his presence, under any of the two
circumstances specified in sub-section (1) and (2) of Section 44.
XI. Endorsement of Warrant by the Executive Magistrate
Warrants to be executed outside the local limits of the court

issuing it should ordinarily be taken to an Executive Magistrate or to a
Police Officer not below the rank of O/C of a Police Station, within the
local limits of whose jurisdiction the warrant is to be executed, for
endorsement vide Sec. 79.
XII. Production of persons arrested on warrants issued by the

court, outside the jurisdiction before the Executive Magistrate
of the area wherefrom arrest has been made
May be produced before the Executive Magistrate vide Sec. 80.
XIII. Procedure to be followed by the Executive Magistrate when

any person arrested on a warrant issued by an outside court is
produced before him
(a) The Executive Magistrate should check up whether the

person arrested appears to be the person intended by the
court issuing the warrant.
(b) When he is so satisfied, he is bound to direct the removal of

the arrested person in custody to the Court which issued the
warrant, unless the offence involved is bailable.
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(c) If the offence is bailable, he shall enlarge the person under

arrest on bail provided the person concerned furnishes
security to his satisfaction. He shall then forward the bail
bond to the court which issued the warrant.
REFERENCE : SECTION 81
XIV. Powers of the District Magistrate and the Sub-Divisional

Magistrate to issue search-warrants or to make orders
(a) U/S 94 Cr.P.C. for search of places suspected to contain

stolen property, forged documents etc.
(b) U/S 97 Cr.P.C. for search of persons wrongfully confined.
(c) U/S 98 Cr.P.C. for restoration of abducted females.
NOTE: 93(1) Cr.P.C. authorises a court to issue search warrant for

document or thing.An Executive Magistrate, while acting as court
may also issue search-warrant U/S 93(1) Cr.P.C. in appropriate
cases after due enquiry and upon proper material.
XV Powers of any Executive Magistrate
(i) to require search to be made for letters and telegrams in the

custody of the postal or telegraph authority, pending the order of
the District Magistrate vide Sec. 92(2).
(ii) to authorise police officer not below the rank of Sub-

Inspector to search and seize certain publications forfeited under
the order of the State Government vide Sec. 95.
XVI. Power to direct search in his presence
An Executive Magistrate, if and when he is competent to issue a

search warrant may, instead of issuing a search warrant, direct a search
to be made in his presence vide Sec. 103.
XVII. Security for keeping peace and for good behaviour
An Executive Magistrate is competent to demand security as

indicated below:-
(a) for keeping peace in cases otherwise than on conviction vide

Section 107.
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(b) for good behaviour from persons disseminating seditious

matters vide Section 108.
(c) for good behaviour from suspected persons vide Section 109.
(d) for good behaviour from habitual offenders vide Section 110.
Sections 111 to 124 lay down the procedure to be followed for the
exercise of such magisterial jurisdiction. Section 116 provides for the
inquiry to be held.
XII(A)Power to disperse assembly by use of force
(a) Any Executive Magistrate is competent to command an

unlawful assembly, actual or potential, to disperse vide Section
129(1).
(b) Any Executive Magistrate, may disperse such assembly by

use of Civil Force vide Section 129(2).
(c) If such assembly cannot be dispersed otherwise, the

Executive Magistrate of the highest rank present may cause it to
be dispersed by armed forces vide Sec.130.
XVIII. Power to deal with public nuisances
A District Magistrate or a Sub-Divisional Magistrate or any other

Executive Magistrate specially empowered in this behalf by the State
Government is competent to:-
(a) pass a conditional order for removal of nuisance vide Section

133.
(b) make an inquiry as to the existence of public right when it is

denied vide Section 137.
(c) hold an inquiry with a view to determining whether

conditional order should be confirmed or modified or further
proceeding dropped vide Section 138.
(d) such Magistrate may issue injunction, pending inquiry, to

prevent imminent danger or injury of a serious kind to the
public vide Section 142, read with Section 133.
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(e) such Magistrate may prohibit repetition or continuance of

public nuisance vide Section 143.
XIX. Power to issue order in urgent cases of nuisance or

apprehended danger
A District Magistrate, a Sub-Divisional Magistrate or any other

Government may, in the circumstances set forth in Section 144 Cr.P.C.,
direct any person either to abstain from a certain act or to take certain
order with regard to certain property in his possession or under his
management.
Such direction may be given to prevent
(i) obstruction, annoyance or injury to any person lawfully employed. or

(ii) danger to human life, health or safety or (ii) disturbance of public
tranquillity, or a riot or any affray.
REFERENCE: SECTION 144 Cr.P.C.
XX. Power to intervene and tackle a dispute concerning land or

water which is likely to cause breach of peace
An Executive Magistrate, if satisfied about the existence of a

dispute of the aforesaid nature, must pass a preliminary order U/S 145
(1) and afterwards make an inquiry U/S 145(2).
The inquiry should be limited to the question as to who was in

possession in fact on the date of the preliminary order, irrespective of the
question as to the rights of the parties.
The object of Section 145 is (a) to prevent the breach of the public
peace, (b) to provide a summary and speedy remedy, (c) ascertain which
party was in actual possession and(d) to maintain status quo until the
rights of the parties are decided by a competent court.
The power to attach the subject of dispute and to appoint Receiver

have also been conferred upon such Magistrate U/S 146. The
proceedings U/S 146 are in continuation of those U/S 145.
XXI. Power to deal with disputes about the right to a particular use
of land or water
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This has reference to Section 147. Section 147 has the same object
as Section 145 but the nature of dispute U/S 145 is different from the
one U/S 147.Section 145 applies to disputes about the possession of the
land or water itself while Section 147 relates to disputes regarding rights
of user of land or water. The following two examples will make the
position clear:
Section 145 Section 147

(i) If the dispute is as regards the If the dispute relates to the right of
possession of a temple, worship at or entry into the temple,
proceedings are to be started action may be taken u/s 147.
U/S 145.
(ii) Where the subject matter of The dispute over the right to ply a
dispute is a ferry including the ferry is one u/s 147.
land and water upon which the
right to ferry is exercised, the
case comes properly u/s 145.
The mode of inquiry U/S 147 is same as U/S 145.
Section 145 (6) enjoins that the Executive Magistrate shall make
an order declaring possession. Section 147(3) on the other hand,
provides that the Executive Magistrate may make an order prohibiting
any interference with the exercise of the right of actual user claimed,
provided that it appeared to exist.
Section 145(6) enjoins that the Executive Magistrate shall make an

order declaring possession. Section 147(3), on the other hand, provides
that the Executive Magistrate may make an order prohibiting any
interference with the exercise of the right of actual user claimed,
There may be attachment in a proceeding u/s 145 but the

question of attachment does not arise in a case u/s 147.
XXII. Power of remand for a term not exceeding seven days
When a Judicial Magistrate is not available, an accused may be

forwarded by the police u/s 167 Cr.P.C., to the nearest Executive
Magistrate, on whom powers of a Judicial Magistrate or Metropolitan
Magistrate have been conferred. Such Executive Magistrate may
authorise the detention of the accused for a term not exceeding seven
days vide sub-section 2A of Section 167, which was inserted by the Code
of Criminal Procedure (Amendment) Act, 1978.
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XXIII. Police to report unnatural or suspicious deaths to the

nearest Executive Magistrate empowered to hold inquests vide
Section 174 (1)
The following Magistrates are empowered to hold inquests:-
(1) District Magistrate.

(2) Sun-Divisional Magistrate.
(3) Any other Executive Magistrate specially empowered in this
behalf by the State Government, or the District Magistrate.
XXIV. Inquiry by a competent Executive Magistrate into the

cause of death vide Section 176
(a) Section 176 has been amended by the Act 46 of 1983 with
effect from 25.12.1983.In certain specified cases, as for example, death
in police custody, magisterial inquiry is compulsory and in other cases, it
is optional.
NOTE:The scope of compulsory inquiry by the competent Executive

Magistrate has been enlarged by the Criminal Law(Second
Amendment) Act, 1983 (Act 46 of 1983).
(b) A Magistrate holding an inquiry u/s 176 does not constitute

a court. (There is, however, difference of judicial opinion on this point)
Executive Magistrates are courts inferior to that of the Sessions

Judge.
XXV. All Executive Magistrates including District Magistrates and

Additional District Magistrates are regarded as Criminal
Courts inferior to the Sessions Judge for the purpose of
exercise of the powers of revision vide Section 397 and 398.
XVI. Appeals from the orders of the Executive Magistrates
(a) Orders passed by Executive Magistrate U/S 117 requiring

security for keeping peace or for good behaviour and U/S
121 refusing to accept or rejecting a surety are appealable
and such appeals shall lie to the court of Sessions Vide
Section 373.
(b) When an Executive Magistrate makes a complaint u/s 340(1)

Cr.P.C. for offences against the administration of Justice, he
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functions as court within the meaning of Section 340(4)read

with Section 195 and in that capacity, he is subordinate to
the court of Sessions for the purpose of appeal vide Section
195(4).
XXVI. Orders of the Executive Magistrates convicting persons

u/s 345, and 349 and 350 are appealable and such an appeal
shall lie to the court of sessions.
XXVII. Transfer of Cases
Any District Magistrate or Sub-Divisional Magistrate has right to

make over to or withdraw from any Magistrate subordinate to him cases
which have been started before him or which have been made over to any
Magistrate subordinate to him respectively vide 411.
Any case u/s 411 means any proceeding or inquiry before an

Executive Magistrate, such as cases under section 107,108,109,110,133,
144-145-146 and 176.
XXIX. Besides, what has been stated hereinbefore, the

Executive Magistrates, while functioning as criminal Courts,
will have authority to exercise all such powers as have been
conferred upon the Courts under the provisions of the Cr.P.C.
provided that those powers are also relatable to and
exerciseable in furtherance of their functions under the code,
as for examples:-
(i) Process to compel appearance.
(ii) Taking and recording evidence in inquiries.
(iii) Disposal of property pending inquiry and at the conclusion of the

inquiry.
(iv). Forfeiture of bonds furnished to the Executive Magistrates under

the Cr.P.C.
(v) Issuing commission for examination of witness (Section 284

Cr.P.C.).
(vi) Holding local inspection (Section 310).
(vii) Discharge of sureties u/s 444 Cr.P.C.
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(viii) Punishing for criminal contempt of court in view or in the face of

the court (Section 345).
XXX. Affidavit
Affidavits to be used before any court under the Cr.P.C. may be

sworn or affirmed before an Executive Magistrate (Vide Section 297
Cr.P.C.).
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POWERS OF THE EXECUTIVE MAGISTRATES UNDER THE CODE OF

CRIMINAL PROCEDURE, 1973 (ACT II OF 1974) TO DEAL WITH
"LAW AND ORDER" PROBLEMS
1. Power of Arrest
An Executive Magistrate is competent to arrest or to direct arrest

vide Section 44 Cr.P.C.
2. Where such arrest may be made?
Within his local jurisdiction.
3. When an Executive Magistrate may arrest or direct arrest?
(a) When any offence is committed in his presence.
OR
(b) When he has the authority to issue warrant for the arrest of
the person concerned.
4. Can the Magistrate demand assistance of the public in making

such arrest?
Yes, he has the legal right to demand the aid of any member of the
public for the purpose of effecting such arrest Vide Section 37 Cr.P.C.
A member of the public is bound to assist the Magistrate when his

aid is reasonably demanded by the Magistrate for the purpose of making
arrest.
Intentional omission to render such assistance is punishable U/S

187 IPC.
5. Power to Disperse Unlawful Assemblies
An Executive Magistrate is empowered to command an unlawful

assembly, either actual or potential, to disperse vide Section 129 Cr.P.C.
6. An Unlawful Assembly - What it is?
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(a) It is a collection of five or more persons.
(b) All of them should be actuated by a common object.
(c) The common object should be one of those specified in

Section 141 IPC. (Definition given in Sec.141 IPC).
7. Mere Presence of a person in the assembly, by itself, is not

sufficient to make him liable for being a member
In order to hold him responsible, it has to be shown that he was

aware of the common object and that he concurred in it.
8. Command for dispersal may be given not only to an unlawful

assembly, which fulfills the conditions laid down in Section
141 IPC but also to a potential unlawful assembly.
An assembly of five or more persons, which does not come within

the purview of Section 141 IPC, may also be commanded to disperse,
provided that it is, in the given circumstances, likely to cause a
disturbance of public peace. It is a question of fact. It has to be decided
on the basis of acts and behaviour of the assembly itself.
9. Use of civil force for dispersal of actual or potential unlawful

assembly (vide Sec. 129(2) Cr.P.C.)
(a) When such an assembly, on being so commanded, does not

disperse, the Magistrate may use civil force for dispersing
such assembly.
(b) Even if such an assembly has not been commanded to

disperse but it conducts itself in such a manner as to show a
determination not to disperse, the Magistrate may proceed to
disperse it by civil force.
10. Civil Force - source of
(a)State Police Force.
(b)Any male member of the public.
11. Refusal to disperse, after being commanded to do so, is

punishable
(a) U/S 145 IPC in case of unlawful assembly.
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(b) U/S 151 IPC in case of an assembly likely to cause

disturbance of public peace.
12. Arrest and confinement
Members of such assemblies may be arrested and confined with a

view to effecting dispersal or being prosecuted and punished according to
law.
13. When assembly cannot be dispersed by the use of civil force
In such an event, the Executive Magistrate of the highest rank

present may cause it to be dispersed by the armed forces (vide Sec. 130
Cr.P.C.).
14. Armed Forces
They include military, naval and air forces operating as Armed

Forces and also any other Armed Forces of the Union of India so
operating like BSF, CISF, Assam Rifles, ITBP.
15. Urgent cases of nuisance or apprehended danger - Section 144

Cr.P.C.
Section 144 Cr.P.C. confers powers upon certain Executive

Magistrates to issue temporary orders in urgent cases of nuisance or
apprehended danger, when immediate prevention or speedy remedy is
desirable.
16. Which Magistrates are competent to act u/s 144 Cr.P.C.?
(a) District Magistrate.
(b) Sub-Divisional Magistrate.
(c) Any other Executive Magistrate specially empowered by the

State Government in this behalf.
17. The object of an order u/s 144 Cr.P.C. is to prevent any of the
following
(a)Obstructions, annoyance or injury to any person lawfully

employed.
(b)Danger to human life, health or safety.
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(c)Disturbance of public tranquillity.
(d)Riot or affray.
18. Can an order u/s 144 Cr.P.C. be passed ex-parte?
Yes, either in cases of emergency or in cases where circumstances

do not permit service of timely notice upon the person against whom the
order is directed.
19. Nature of the order u/s 144 Cr.P.C.
(a) Generally, it is prohibitory.
(b) In appropriate cases, it may be mandatory, say, for instance,

Magistrate may enjoin the opposite party to direct removal of
an obstruction when it is needed to prevent a breach of
peace.(Madhu Limaye's case - Supreme Court).
20. A prohibitory order u/s 144 Cr.P.C. must specify
(i)the thing which is prohibited
(ii) the persons who are prohibited
(iii)the place covered by the order.
NOTE: It is desirable to mention the period of time.
21. Examples of the kinds of orders that may be passed by the

competent Executive Magistrates u/s 144 Cr.P.C.
(a) To prohibit an assembly, a meeting, or procession for

prevention of breach of peace, but not for interfering with the
lawful exercise of legal rights.
(b) To prohibit carrying of arms or weapons.
(c) To prohibit a person from entering into a particular area.
(d) To prohibit use of loudspeakers.
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(e) To prohibit people from coming out of their houses on the

public road/street/lane (curfew).
(f) To prohibit raising of provocative slogans which are likely to

cause breach of peace.
(This list is illustrative and not exhaustive)
22. Violation of an order u/s 144 Cr.P.C.
It is punishable u/s 188 IPC. It is a cognizable offence.
23. Power to intervene and tackle a dispute concerning land or

water which is likely to cause breach of peace
An Executive Magistrate, if satisfied about the existence of a

dispute of the aforesaid nature, must pass a preliminary order u/s
145(1) and afterwards make an inquiry u/s 145(2).
The inquiry should be limited to the question as to who was in

possession in fact on the date of the preliminary order, irrespective of the
question as to the rights of the parties.
The object of Section 145 is (a) to prevent the breach of the public
peace, (b) to provide a summary and speedy remedy; (c) ascertain which
party was in actual possession and (d) to maintain status quo until the
rights of the parties are decided by a competent court.
The power to attach the subject of dispute and to appoint Receiver

has also been conferred upon such Magistrate u/s 146.The proceedings
u/s 146 are in continuation of those u/s 145.
24. Power to deal with disputes about the right to a particular use
of land or water
This has reference to Section 147.Section 147 has the same object
as Section 145 but the nature of dispute u/s 145 is different from the
one u/s 147.Section 145 applies to disputes about the possession of the
land or water itself while Section 147 relates to disputes regarding rights
of user of land or water. The following two examples will make the
position clear:-
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Section 145 Section 147

(i)If the dispute is as regards the If the dispute relates to the right of
possession of a temple, proceedings worship at or entry into the temple,
are to be started u/s 145. action may be taken u/s 147.
(ii) Where the subject matter of The dispute over the right to ply a
dispute is a ferry including the land ferry is one u/s 147.
and water upon which the right to
ferry is exercised, the case comes
properly u/s 145.
The mode of inquiry u/s 147 is same as u/s 145.
Section 145(6) enjoins that the Executive Magistrate shall make an

order declaring possession. Section 147 (3), on the other hand, provides
that the Executive Magistrate may make an order prohibiting any
interference with the exercise of the right of actual user claimed,
There may be attachment in a proceeding u/s 145 but the

question of attachment does not arise in a case u/s 147.
25. Security for keeping peace and for good behaviour
An executive Magistrate is competent to demand security as

indicated below:-
(a) for keeping peace in cases otherwise than on conviction vide

Section 107.
(b) for good behaviour from persons disseminating seditious

matters vide Section 108.
(c) for good behaviour from suspected persons vide Section 109.
(d) for good behaviour from habitual offenders vide Section 110.
Sections 111 to 124 lay down the procedure to be followed for the
exercise of such magisterial jurisdiction. Section 116 provides for the
inquiry to be held.
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26. Power to deal with public nuisances
A District Magistrate or a Sub-Divisional Magistrate or any other

Government is competent to:-
(a) pass a conditional order for removal of nuisance vide Section

133.
(b) make an inquiry as to the existence of public right when it is

denied vide Section 137.
(c) hold an inquiry with a view to determining whether

conditional order should be confirmed or modified or further
proceeding dropped vide Section 138.
(d) such Magistrate may issue injunction, pending inquiry, to

prevent imminent danger or injury of a serious kind to the
public vide Section 142, read with Section 133.
(e) such Magistrate may prohibit repetition or continuance of

public nuisance vide Section 143.
27. Which Section of the Cr.P.C. should be invoked to prevent

breach of peace is a matter to be determined by the Magistrate
in the exercise of his sound discretion, due regard being had to
the facts and circumstances of the situation that confronts
him. A few broad guidelines are given below:-
(1) When the dispute, which is likely to lead to breach of peace,

does not relate to immovable property including land,
Section 107 may be applied.
(2) When there is a bona fide dispute relating to possession of

immovable property, Section 145 is applicable and
appropriate.
(3) The mere fact that the dispute concerns immovable property
is, however, no bar to a proceeding u/s 107 Cr.P.C.
23
Readings in Law
(4) When one party is clearly on the wrong side and threatens to
usurp the right of another who is in actual possession, the
proper remedy is an order u/s 144 or 107 Cr.P.C.
(5) Sections 107 and 145 Cr.P.C.
(a) Section 107 is discretionary while Section 145 is

mandatory.
(b) Section 107 is general and refers to personal disputes

not concerning immovable property. Section 145
relates to disputes as to possession of immovable
property.
(c) When a dispute likely to cause a breach of peace exists

concerning possession of immovable property, the
Magistrate may proceed either u/s 107 or u/s
145.When breach of peace is imminent on the
question of possession, Section 107 would be
appropriate.
(d) In urgent cases, Section 144 may be invoked and may,

if necessary, be combined with Section 145.
24
Readings in Law
POWERS OF THE EXECUTIVE MAGISTRATES UNDER Cr. PC

-at a glance
Introductory :
Executive Magistrates
(a) They are appointed by the State Government u/s 20 Cr. PC.
(b) Their functions are generally executive or administrative in

nature.
(c) Executive Magistrates, when they exercise judicial powers,

are Criminal Courts within the meaning of Sec. 6 Cr. PC.
CRIMINAL PROCEDURE CODE, 1973
Nature of power Authority Relevant Remarks

on whom Section
power of Cr. PC
conferred
1) To restrict the local D.M. 22(1) The authority of
limits of each Executive the D.M. is subject
Magistrate within the 22(2) to the control of the
district. State Govt.
2) To distribute business D.M. 23(2) By making rules or
among the Executive giving special
Magistrates subordinate order.
to him.
3) To allocate business to 23(2) -do-
an Additional District
Magistrate.
4) To confer upon the State Govt. 20 (2)
A.D.M. all or any of the
power of D.M.
25
Readings in Law

on whom Section
power of Cr. PC
conferred
5) To exercise power of the A Judge or 35 Powers of
predecessor-in-office Magistrate Magistrates are
including exerciseable by
E.M. their predecessors-
in- office subject to
the provisions of
Cr. PC
Note : When there

is a doubt as to
who is the
successor-in office
of any Executive
Magistrate, it shall
be determined by
the D.M. vide Sec.
35 (3).
6) To demand the E.M. 37 In the prevention
assistance of a member or suppression of a
of the Public. breach of peace or
in the taking or
preventing the
escape of any
person whom the
Magistrate is
authorised to
arrest or in the
prevention of any
injury attempted to
be committed to
any railway,
telegraph or public
property.
Note : Omissions
to render aid is
punishable u/s
187 I.P.C.
26
Readings in Law

on whom Section
power of Cr. PC
conferred
7) To be informed of Nearest 39 Public to give such
certain offences. Magistrate information.
or Police
Officer
Note : For penalty,
vide Sec. 176 and
202 I.P.C.
8) To be posted with Nearest 40 Duty cast upon the
reports in connection Magistrate village officials.
with the affairs of a or Police Breach of duty
village. Officer punishable under
Section 176 I.P.C.
9) To arrest or to direct E.M. 44(1) & When any offence
arrest within the local is committed in his
jurisdiction in his (2) presence or when
presence he has the
authority to issue
warrant of arrest.
10) To receive report from D.M., 58 D.M. may direct
O.C. of P.S. about the S.D.M. O.C. to report to
cases of persons the S.D.M. such
arrested without cases of arrest.
warrants.
11) To endorse warrant of E.M., 79
arrest issued by an
outside court for O/C of
execution within the Police
local limits of his Station
jurisdiction.
12) To allow the arrested E.M., S.P. 80 When the outside
person to be produced C.P. court issuing the
before him. warrant is beyond
30 K.M. of the
place of arrest.
27
Readings in Law

on whom Section
power of Cr. PC
conferred
13) To check up whether, E.M. 81 This procedure is
the person, arrested on to be followed by
warrant, appears to be the E.M. when any
the person intended by person, arrested on
the court issuing the a warrant issued
warrant. by an outside
court, is produced
before him.
14) To direct the removal of E.M. 81 Unless the offence
the arrested person in involved is bailable.
custody to the court
which issued warrant.
15) To enlarge the arrested E.M. 81 In such event, the
person on bail, if the bail-bond should
offence is bailable and be forwarded to the
the person arrested court which issued
furnishes security to the warrant.
his satisfaction.
To compel production of E.M. 91

things for purpose of
inquiry.
16) To require search to be E.M. 92(2)
made for letters and
telegraphs.
17) To issue search warrantAny 93(1) For production of a
(while acting as a court, specified thing or
court). including document for
that of general search.
E.M.
18. To issue search D.M., 93(3) For document
warrant. parcel or a thing in
C.J.M. custody of postal or
telegraph
authority.
28
Readings in Law

on whom Section
power of Cr. PC
conferred
19) To issue search warrant D.M., a) 94 a)For search of
or to make orders. S.D.M. place suspected to
J.M. (1st) contain stolen
property, forged
documents etc.
b) 97 b) For search of
persons
wrongfully
confined.
c) 98 c) For restoration
of abducted
females.
20) To require search to be E.M. 92 (2)

made for letters and
telegrams in the J.M.
custody of the postal or
telegraph authority
pending the order of
D.M. , C.J.M etc.
21) To authorise police Any 95
officer, not below the Magistrate
rank of sub-inspector, (E.M.
to search or seize included)
certain publications
forfeited.
22) To direct search in his Any 103 If and when he is
presence Magistrate competent to issue
(E.M. a search warrant,
included) he may, instead of
issuing search
warrant, direct
search to be made
in his presence.
23) To impound any Any court 104
document and thing. including
E.M.
29
Readings in Law

on whom Section
power of Cr. PC
conferred
24) To demand security : E.M. a) 107 For keeping peace
for good behaviour or in cases otherwise
keeping peace. then on
conviction.
b) 108 For good

behaviour from
persons
disseminating,
seditious matters.
c) 109 For good

behaviour from
suspected
persons.
d) 110 For good

behaviour from
habitual offenders.
Note : Section 111

to 124 lay down
the procedure to
be followed for the
exercise of such
Magisterial
jurisdiction.
Section 116
provides for
procedure to be
followed for
inquiry.
25) To pass a preliminary E.M. 111 When the
order asking any magistrate acting
person to showcause. U/s 107, 108, 109
or 110 deems it
necessary.
30
Readings in Law

on whom Section
power of Cr. PC
conferred
Note : The order
should be in
writing and it
should contain the
following :
a) Substance of
the information
received;
b) The amount of
the bond to be
executed; and
c) The term for

which it is to
be in force; and
d] The number,
character and
class of sureties
if required.
26) To read over to the E.M. 112 It may, if desired
O.P., if present in court, by the O.P., be
the preliminary order. explained to him.
27) To issue summons E.M. 113 A copy of the
requiring such person preliminary order
to appear. should accompany
the summons.
This is the normal
procedure in
securing
attendance of the
O.P.
28) To issue Production E.M. 113 When such person
warrant addressed to is in prison.
the Officer-in-charge of
the prison, directing the
production of such
person.
31
Readings in Law

on whom Section
power of Cr. PC
conferred
29) To issue warrant of E.M. Proviso A copy of the
arrest against O.P., to sec. preliminary order
when breach of peace is 113 should be attached
apprehended which can to the Warrant of
not be prevented Arrest vide Section
otherwise, than by 114.
immediate arrest of O.P.
30) To issue warrant of E.M. 87(b) Vide Gopi V/s
arrest U/s 87 (b) when State reported in
the O.P. does not turn 1974 Cr. L.J. 1410.
up in response to the
summons.
31) To give an opportunity E.M. 115
to show-cause to the
O.P.
32) To dispense with the E.M. 115
personal attendance of
any person and permit
him to appear by a
pleader.
33) To inquire and record E.M. 116 Procedure for trial
evidence in security of summon cases
proceedings. to be followed.
34) To ask for a interim E.M. 116 (3) The inquiry is to be
bond from such person completed within
after commencement of six months. The
the inquiry and before proceeding shall
completion of the stand terminated
inquiry. on the expiry of six
months unless the
Magistrate, for
special reasons,
extends the time.
Such extension, if
any, is to be made
within six months.
Extension, if any,
is liable to be
scrutinized by the
Sessions Judge.
32
Readings in Law

on whom Section
power of Cr. PC
conferred
35) To order for furnishing E.M. 117 When it is proved
of security. that it is
necessary to take
security.
36) To discharge O.P. E.M. 118 When the case is
(opposite party). not proved.
37) To refuse or reject a E.M. 121 If he is found
surety. unfit.
38) To order imprisonment E.M. 122
is default of security.
39) 15) to report the case to E.M. 122 In the meantime
the Session Judge for the O.P. may be
his orders when the detained pending
bond is for more than the decision of the
one year. Session Judge.
Note : (1) When

the O.P. after
execution of a
bond for good
behaviour but
during the term of
the bond, commits
or attempts to
commit or abets in
the commission of
an offence
punishable with
imprisonment, it
may be regarded
as breach of the
bond.
33
Readings in Law

on whom Section
power of Cr. PC
conferred
(b) A bond for
keeping the peace
is broken when
the O.P. does
some acts during
the term of the
bond, which is
likely in its
consequence to
provoke the
breach of peace.
40) To release person (a) D.M. 123 (1) a) When the
imprisoned for failure to (b) C.J.M imprisonment
give security. as the case has been
may be ordered by
Executive
(c) in other Magistrate.
cases 123 (1)
41) To reduce the amount of (a) High 123(2) c) In case of order

security, number of Court passed by E.M. (d)
sureties or the time for [b] Court in case any other
which security has been of case.
taken when the persons Sessions
have been imprisoned (c) D.M.
for failure to give (d)C.J.M.
security.
42) To pass a conditional E.M. 133 vide part -B chap
order for removal of
nuisance.
43) Executive (b) 137 He may make an
Magistrate inquiry as to the
Specially existence of public
empowere right when it is
d by the denied.
State Govt.
34
Readings in Law

on whom Section
power of Cr. PC
conferred
44) (c) 138 He may hold an
inquiry with a
vide to
determining
whether the
conditional order
should be
confirmed or
modified or
further
proceeding be
dropped.
45) To issue injunction E.M. 142
pending inquiry u/s
133.
46) To prohibit repetition or E.M. 143
continuance of public
nuisance.
47) To issue temporary D.M. 144 When immediate
orders in urgent cases S.D.M., any prevention of
of nuisance or other E.M. speedy remedy is
apprehended danger. specially desirable.
empowered
by the
State Govt.
Note : The object
of an order U/S
144 Cr. P.C. is to
prevent any of the
following :
a) Obstruction
annoyance or
injury to any
person lawful
employed.
b) Danger to
human life,
health and safely.
35
Readings in Law

on whom Section
power of Cr. PC
conferred
c) Disturbance of
public tranquility.
d) Riot or - affray
48. To pass an order ex- D.M. 144 In case of
parte under section 144 S.D.M., any emergency or in
Cr. P.C. Other E.M. cases where
specially circumstances do
empowered not permit for
by the service of timely
State Govt. notice upon the
person against
whom the order is
directed.
Note : The nature

of order U/S 144
is generally
prohibitory.
In appropriate
cases it may be
mandatory e.g.
the Magistrate
may enjoin the
opposite party to
direct removal of
an obstruction
when it is needed
to prevent a
breach of peace
(Madhu Limaye's
case, case,
Supreme Court).
36
Readings in Law

on whom Section
power of Cr. PC
conferred
49) Examples of the orders D.M. 144 A prohibitory
that may be passed u/s S.D.M., order U/s 144 Cr.
144 any Other P.C. must specify :
E.M.
specially
empowere
d by the
State Govt.
i) the thing which
is prohibited;
ii) the persons who

are prohibited;
iii) the place
covered by the
order; and
iv) the period of

time.
50) (a) To prohibit an
assembly, or a meeting
or procession for
prevention of breach of
peace but not for
interfering with the
lawful exercise of legal
rights.
[b] To prohibit carrying

of arms or weapons.
[c] To prohibit a person

from entering into a
particular area.
[d] To prohibit using of Note : The list

loudspeakers given in column
No. 1 is illustrative
and not
exhaustive.
37
Readings in Law

on whom Section
power of Cr. PC
conferred
(e)To prohibit people Violation of an
from coming out of their order U/s 144 Cr.
houses on the public P.C. is a
road/street/lane cognizable U/s
(curfew). 188 IPC.
To prohibit raising of
provocative slogans
which are likely to cause
breach of peace.
51) To intervene and tackle E.M. (a) (a) If the E.M. is
a dispute concerning 145 (1) satisfied about
land or water which is the existence
likely to cause breach of of a dispute of
peace. the aforesaid
nature, he
may pass a
preliminary
order.
(b) (b) Afterwards, he

145 (2) may make an
inquiry.
Note : The inquiry

should be limited
to the question as
to who was in
possession in fact
on the date of the
preliminary order
irrespective of the
question as to the
right of the
parties.
38
Readings in Law

on whom Section
power of Cr. PC
conferred
The object of the
Section 145 is:
(i) To prevent
the breach
of public
peace;
(ii) To provide
summary
and speedy
recovery;
(iii) To ascertain
which party
was in
actual
possession;
and
(iv) To maintain
Status-quo
until the
right of
parties are
decided by a
competent
court
52) To attach the subject of E.M. 146(1) The proceedings
the dispute and appoint u/s 146 are in
a Receiver. continuation of
those u/s 145.
53) To appoint a Receiver. E.M. 146 (2)
39
Readings in Law

on whom Section
power of Cr. PC
conferred
54) To take preventive E.M. 147 Section 147 has
measures in respect of the same object as
disputes concerning the Section 145 but
right to a particular use the nature of
of land or water. dispute u/s 145 is
different from that
of u/s 147. Sec.
145 applies to
disputes about the
possession of land
or water itself,
while, Sec. 147
relates to disputes
regarding rights of
USER of land or
water.
Note : Mode of
inquiry u/s 147 is
same as u/s 145.
55) To make an order E.M. 145(6) There may be
declaring the possession attachment in a
proceeding u/s
145 but the
question of
attachment does
not arise in a case
u/s 147.
56) To make an order E.M. 147 (3)
prohibiting any
interference with the
exercise of the right of
the actual User claimed,
provided that it appears
to exist.
57) To hold local inquiry E.M. 148
40
Readings in Law

on whom Section
power of Cr. PC
conferred
58) To remand an accused E.M. 167 (2-A) When a Judicial
to custody during Magistrate is not
investigation. available, an
accused may be
forwarded by a
police officer of
and above the of
rant of S.I. U/s
167 Cr. PC to the
nearest E.M. on
whom powers of
the Judicial
Magistrate or
Metropolitan
Magistrate have
been conferred
vide Section 167
(2-A).
59) To hold inquest that D.M. 174 (4) Inquest when
means to make an S.D.M., any mandatory for the
inquiry into the cause of Other E.M. competent E.M.
unnatural or suspicious specially
death. empowered
by the
State Govt.
a) When any
person dies in
the police
custody.
[b]The case
involves
suicide of a
woman within
seven years of
her marriage.
41
Readings in Law

on whom Section
power of Cr. PC
conferred
[c)The case relates
to death of woman
within 7 years of
her marriage in any
circumstances
raising a reasonable
suspicion that some
other person
commit an offence
in relation to such
woman.
[d] In any other case
mentioned in 174
(1), any Magistrate
so empowered may
hold an inquiry into
the cause of death
either instead of or
in addition to the
investigation held
by the police
Officer. (Here, the
inquest by
Magistrate is
DISCRETIONERY).
60) To direct the police not State 176 read D.M. or S.D.M. has
to hold inquest on Govt. with 174 power to issue
receipt of an information D.M., general or special
from the police or any S.D.M. order in this regard.
other source. Vide Section 174 (1)
Cr. P.C.
42
Readings in Law
on whom Section
power of Cr. PC
conferred
61) To cause a dead body to D.M. & 176 (3)
be disinterred S.D.M., any
Other E.M.
specially
empowered
by the
State Govt.
62) The Magistrate has the D.M. & 176 read

following powers in S.D.M., any with 174
regard to inquest :- Other E.M.
specially
empowered
by the
State Govt.
(a) to proceed to the Inquest is to be

spot promptly. held on the spot.
(b) to inform the The expression

relatives of deceased "relatives in this
whose names and context, means
addresses are parents, children,
known and allow brothers, sisters
them to remain and spouse.
present at the
inquiry.
(c) to examine carefully

the deadbody in
presence of two or
more respectable
inhabitants of the
neighbourhood.
43
Readings in Law
on whom Section
power of Cr. PC
conferred
(d) to note down all Signs of
relevant features, inflammatory
which include, reaction (smelling
among other things, etc.) and signs of
number, position struggles should be
and direction of recorded.
wounds, fractures,
bruises and other
marks of injury on
the body.
(e) to take steps (before

commencing
examination of the
dead body) for
identification of the
deceased by atleast
two persons who
have known him
before his death.
(f) to examine the He has power to

persons who are administer oath.
supposed to be Vide section 3 of the
acquainted with the Oaths Act, 1969.
facts and the
circumstances of the Note : Evidence of
case and record each witness should
their evidence. be recorded
separately in
verbatim.
44
Readings in Law
on whom Section
power of Cr. PC
conferred
(g) to call and examine It is not necessary
eyewitnesses, if available to examine all the
eye-witnesses. If
eye-witnesses are
not available, the
Magistrate may
examine other
persons who may
throw light over the
cause of death.
(h) To inspect the general

diary, connected case
diary, lock up register
and all other relevant
records and documents
in case of inquiry into
the cause of death in
police custody.
(i) to issue process and Proceedings

to compel appearance of conducted by E.M.
witness and production U/s 176 Cr. P.C.
of things. are an inquiry
within the meaning
of section 2(g) Cr.
P.C. vide A.I.R.
4928 Bombay 390.
63) To record confession of E.M. 176 An E.M. though not
any person which is empowered to
likely to throw light over record confessional
the cause of death. statement u/s 164
Cr. P.C. may record
confession of any
person throwing
light over the cause
of death AIR 1953
Madras 138 (741)
AIR 1964 A.P. 548
D.M. can not

interfere in an
45
Readings in Law
inquiry u/s 176 Cr.

P.C. made by the
S.D.M. or any other
competent E.M.
64) To issue commission for E.M. 284
examination of
witnesses.
65) To make a complaint Courts 340(1), E.M.'s including
U/S 340(1) for offences including read with D.M. & S.D.M. are
against the that E.M. Sec. 195 court inferior to
Administration justice. that of Session
To order costs in the Judge vide Section
context of filing 397 & 398.
complaint.
To forward the contempt E.M. 346(1)

case to the judicial
Magistrate for trial.
66) To convict & punish Courts 345, Such orders of the

persons under sections including 349, E.M. are appealable
345, 349 & 350 Cr. PC. that of 350 to the court of
E.M. sessions.
67) To make over or D.M. 411 Any case u/s 411
withdraw from any means any
Magistrate subordinate S.D.M. proceeding or
to him cases which has inquiry before an
been started before him E.M. such as cases
or which have been u/s 107, 108, 109,
made over to any 110, 133, 144, 145,
Magistrate subordinate 146 and 176.
to him respectively.
68) To exercise all such
powers as have been
conferred upon the court
under provisions of the
Cr. PC. provided that
those powers are also
relatable to and
exerciseable
infurtherance of their
functions under the
code, as for example:-
46
Readings in Law
on whom Section
power of Cr. PC
conferred
a) Issuing Process to Courts 69,70, 71
compel appearance. including etc.
that of chapter
E.M. VI,
A,B,C,D &
chapter
VII, A
b)Taking and recording -do-

evidence in inquiries
[c]Disposal of property -do- 451 to

pending inquiry and at 459
the conclusion of the
inquiry.
d)Forfeiture of bonds -do- 446
furnished to the
Executive Magistrate
under the Cr. PC and
imposing penalty.
e)Holding local -do- 310
inspection
f) Discharge of sureties E.M., 444

u/s 444 Cr. P.C. J.M.
g) Issuing warrant E.M., 421

levying fine J.M.
h) Punishing for criminal -do- 345

contempt in view or in
the face of the court.
69) To allow affidavits to be E.M. 297
sworn.
70) To record the Criminal 280 It should recorded
demeanour of a witness. Court while the witness is
including under examination
that of at any inquiry.
E.M.
OTHER POWERS
47
Readings in Law

on whom Section
power of Cr. PC
conferred
1) To postpone or adjourn Any court 309 Reasons to be
proceedings which including recorded
include inquiries. E.M.
2) To direct the payment of As above Explanation The cost may form
cost by the prosecution 2 of Sec. a condition or term
to the accused. 309 of adjournment.
3) To visit and inspect any Any Judge 310 (1) Due notice to be
place in which an or given to the
offence alleged to have Magistrate person.
been committed or any including
other place which is E.M.
necessary to view for the
purpose of properly
appreciating the
evidence given at an
inquiry, trial or the
proceeding.
4) To record a Any Judge 310 (1) Such
memorandum of any or memorandum
relevant facts observed Magistrate would form part of
at such inspection. the record of the
case.
5) To summon, examine, Any court 311 If evidence of such
recall and re-examine including person appears to
any material witness or court of be necessary for
who is present in court E.M. the just decision of
the case, such
person can be
examined at any
stage of inquiry,
trial or other
proceeding under
Cr. P.C. Note:
Section 311 has
two parts. One
discretionary and
the other
mandatory.
48
Readings in Law
on whom Section
power of Cr. PC
conferred
6) To order payment of -do- 312
expenses of witnesses in
any inquiry.
7) To take cognizance of Any 350(1) If any witness,
the offence for non- Criminal being summoned,
attendance by a witness Court does not appear
in avoidance of including without just
summons and to try him that or excuse, neglects or
summarily. E.M. refuses to attend.
8) To cause an offender to Civil, 345 (1) For Criminal
be detained in custody Criminal Contempt of Court
at any time before the or
rising of the court on the Revenue
same day. Court.
9) To sentence such a As above 350(1) Summary
witness to fine not trial/procedure to
exceeding Rs. 100 be followed for
hearing.
10) To take cognizance of Civil, 345 (1) Offender should be
the offence as described Criminal given reasonable
in sec. 175, 178, 179, or opportunity to
180, 228 C. P.C., when Revenue show-cause why he
it is committed in the Court. should not be
view of or in the punished.
presence of the court.
11) To sentence such As above 345(1) The court shall
offender for criminal record the facts
contempt to fine not constituting the
exceeding Rs. 200 and offence with the
in default of payment of statement, if any,
fine to simple made by the
imprisonment for a term offender as well as
which may extend to one the finding and
month unless such fine sentence.
be sooner paid.
12) To forward the case to a As above 346(1) When court
Magistrate having considers that the
jurisdiction to try the case should not be
offence involved. dealt U/s 345
Cr.P.C.
49
Readings in Law
on whom Section
power of Cr. PC
conferred
13) To command dispersal E.M. 129 An "unlawful
of an unlawful assembly" is a
assembly, either actual collection of five or
or potential. more person
actuated by a
common object as
specified in section
141 I.P.C. An
assembly of five or
more persons
which does not
come within the
purview of section
141 I.P.C. may also
be commanded to
disperse, provided
that it is, in the
circumstances,
likely to cause
disturbance of
public peace.
14) To call civil force for When such an
disperse of actual or assembly, on being
potential unlawful so commanded
assembly. does not disperse.
Even if such an
assembly has NOT
been commanded
to disperse but it
conducts itself in
such a manner as
to show a
determination to
not disperse.
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on whom Section
power of Cr. PC
conferred
Note : Sources of
Civil Force are :-
a) State Police
Force.
Any male member

of the public
Refusal to disperse
is punishable
under section 145
I.P.C. in case of
unlawful assembly
and under section
151 I.P.C. in case
of an assembly
likely to cause
disturbance of
public peace.
15) To make order for arrest E.M. 129(2)
and confinement with a
view to effecting
dispersal or being
prosecuted and
punished according to
law.
16) To cause an unlawful E.M. of 130 Armed Forces
assembly to be the include military,
dispersed by the armed highest naval and air
forces rank forces operating as
present land forces and
also any other
Armed Forces of
the Union of India
so operating like
BSF, CISF, Assam
Rifles and ITBP etc.

on whom Section
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power of Cr. PC
conferred
17) To require the officer E.M. of 130 (2)
commanding the group the
of armed forces to arrest highest
and confine members of rank
such Assembly for present
effecting dispersal or
having them published.
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CODE OF CRIMINAL PROCEDURE, 1973

(Act-II of 1974)
Introductory Concepts and Basic Principles
1. Cr. PC- What it is?
(a) It is a Central Act, which means, it is an Act passed by the

Indian Parliament.
(b) It is described as a Code.
2. Code - Its meaning
(a) A code is the end product of codification.
(b) Codification is a process which consists of compilation,

arrangement, systemisation and promulgation of a body of
laws by an authority competent to do so.
(c) Examples of Code- Indian Penal Code, Civil Procedure Code

and Criminal Procedure Code.
(d) Advantages of codification- simplicity, symmetry,

intelligibility and certainty.
3. Cr.P.C. its nature
(a) Basically, it is a procedural or adjective law.
(b) It consolidates and amends the law relating to Criminal

Procedure.
4. Cr.P.C.- its main scope
(a) It provides for a machinery for the prevention and

punishments of offences under the Indian Penal Code and
Other substantive criminal law of the Land.
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(b) It lays down the procedures for investigation, inquiry and

trial.
Note: Substantive Criminal Law- it is that part of the Criminal Law

which creates offences and prescribes punishments for the
same, such as Indian Penal Code, Dowry Prohibition Act,
Arms Act, Civil Rights Protection Act etc.
5. Cr.P.C. - its basic objectives:
(a) to further the ends of Criminal Justice.
(b) to ensure the observance of the basic principles of Natural

Justice.
(c) to complement and actualise the substantive Criminal Law.
(d) to afford to the accused reasonable opportunity, fair deal

and just trial.
(e) to provide for safeguard against misuse and abuse of the

process of criminal law.
6. An outline of the historical background
(a) The year 1882 was crucial in the history of development of

Criminal Procedure in India
(b) Before 1882, law relating ton Criminal Procedure was not
uniform.
(c) The Criminal Procedure Code, 1882, was enacted to

introduce for the whole of British India, as it was at that
time, a uniform criminal procedure.
(d) The Cr.P.C. of 1882 was replaced by a new Code of Criminal

Procedure in the year 1898.
(e) The Cr.PC of 1898 was amended from time to time. It was
subjected to drastic changes in 1923 and again in 1955.
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(f) The Cr.PC of 1898 was repealed by the existing Code of

Criminal Procedure, 1973 (Act II of 1974).
(g) The new Cr. PC, 1973 was substantially founded upon the
recommendations of the Law Commission of India, as
embodied in its 14th and 48th reports.
(h) The Cr. PC 1973 itself has suffered amendments several

times. Mention may be made of the following Amending
Acts:-
i) Act 45 of 1978
ii) Act 63 of 1980
iii) Act 43 of 1983
iv) Act 46 of 1984
v) Act 43 of 1986
vi) act 32 of 1988
vii) Act 10 of 19990
viii) Act 43 of 1991
7. Commencement:
It came into force on the 1st April, 1974.
8. Extent of its operation:
(a) It extends to the whole of India except the State of Jammu

and Kashmir.
(b) Exceptions have also been made in favour of the State of

Nagaland and Tribal areas of Assam. The whole of Cr. PC
does not apply there. Only certain chapters, Chapters VIII, X
and XI are applicable.
(c) The State of Jammu and Kashmir is governed by a different,

though substantially identical, code of Criminal Procedure.
9. Offence- how defined
(a) Cr.P.C. being the procedural part of the Criminal Law, it

touches the people at many points. The Criminal law
centers round the concept of crime. The term "Crime" has
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not been defined in any Act but a definition of the expression

"offence" has been given in Sec. 2(n) Cr. PC.
(b) It may be noted that "offence means any act or omission

made punishable by any law for the time being in force. It
may be resolved into components as detailed below:-
(i) An act is a deed, that is, doing of something positive such as

assaulting, killing, stealing. It should be something
prohibited under the law.
(ii) Omission means a negative act, non-doing of something

which the Law commands the person to do. When a jailor
omits to give food to the prisoner under his charge, he
commits an illegal omission. If the officer-in-charge of a
police station stands by and looks on when an accused is
beaten up by a Head Constable in the thana Lock-up he
indulges in illegal omission, because he has a legal duty to
prevent such a happening.
(iii) The act or omission must be something punishable under

the Law. Punishment contemplated in one that should be
inflicted by a competent Court of Law and it should be
something authorised by the Law.
(iv) That law must have been in force when the alleged offence
was committed. It should have been validly made by a
competent Legislature.
(v) Law generally does not punish an act or omission unless it is

accompanied by a guilty mind. There are, however
exceptions to this rule. Offences where guilty mind or mens-
rea is not an essential ingredient are known as strict liability
offences. Illustrative case : Cundy Vs. Lindsay.
The accused had a licence, for sale of liquor in his premises. He

sold liquor to a drunken person, which was against the Licensing Act,
1872. His defence was that he did not know that the customer was
drunk. The Court accepted that fact but held that absence of his
knowledge was immaterial. The offence was decided to be one of strict
liability. The accused was found guilty.
By way of illustration, it may be cited that in India, kidnapping

from lawful guardianship, an offence u/s 363 IPC and sale of an
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adulterated article of food, an offence under the Prevention of Food

Adulteration Act, do not require any mens-rea (an evil intention or a
knowledge of the wrongfulness of the act).
10. Classification of offences:
Under the Cr. PC, offences have been classified on the basis of four
different criteria. They are :-
(i) Congnizable and Non-congnizable.
(ii) Bailable and non-bailable.
(iii) Offence triable as summons case and offence triable as

warrant case.
(iv) Offence exclusively triable by a Court of Sessions and offence

not exclusively triable by a Court of Sessions, that ordinarily
means an offence which may be tried by a Judicial
Magistrate of competent jurisdiction.
Note : In this monograph, only the first two classifications (i) and
(ii) shall be dealt with.
11. Cognizable and Non-cognizable of offences:
(a) This division has been made with reference to police power.
(b) Cognizable offence means an offence for which a Police

Officer may arrest without any warrant vide Sec. 2(c).
(c) Non-cognizable offence means an offence for which a police

officer has no authority to arrest without warrant vide sec.
2(e).
(d) Another formulation that flows out of Sections 155 and 156
Cr.PC is that cognizable offence is where the police may
investigate on their own without any order of any judicial
authority but they can not do so when the offence is non-
cognizable. In such a case, order of the competent
Magistrate is necessary in order to enable the police to
investigate.
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(e) Examples- Murder, Kidnapping, Dacoity, etc. are cognizable

offences while simple hurt, defamation, bigamy, etc. are non-
cognizable offences.
(f) Column No. 4 of the First Schedule to the Cr. P.C. will show
whether a particular offence is cognizable or non-cognizable.
(g) The first schedule has two parts, namely (I) relating to the
IPC and (II) concerning non-IPC offences.
Note : IPC stands for Indian Penal Code, which contains the general
law of crimes.
11. Bailable and Non-bailable offence
(a) Bailable offence is an offence where the accused, after arrest,

is entitled to be released on bail as a matter of right.
(b) In non-bailable offence, bail is not a matter of right for the

accused but it is a matter of discretion for the authority
competent to grant bail, that is, the Court or the Police
Officer.
(c) It should not be supposed that bail can not be granted in a

non bailable offence.
(d) Each application for bail made by an accused in a non-

bailable offence has to be decided by the competent Court or
the Police Authority, on its own merits, due regard being had
to be relevant facts and circumstances of the case and
bearing in mind the limitation imposed by law, if any, upon
their powers.
(e) When an accused is granted bail, he is released from legal

custody, upon his furnishing a bond, with or without
surety, for his/her attendance at the time and place
mentioned therein. The place is generally a specified Court.
(f) Ordinarily, the question of bail arises when a person has

been arrested or detained or some kind of restraint has been
imposed upon him.
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(g) To find out, whether a particular IPC offence is bailable or

non-bailable, you are to refer to Part-I of the 1 st Schedule to
the Cr. PC and check up the entry under the column No. 5.
as for example, rioting, an offence punishable u/s 147 IPC is
bailable, whereas theft, an offence punishable u/s 379 IPC is
non-bailable.
(h) For any non-IPC offence, examine that particular Act which
has created the offence. If that Act declares the offence to be
bailable or non-bailable, then accept that position. If that
Act is silent on that point, then decide the matter in terms of
punishment prescribed for that offence and in the light of
the principle enunciated in Part-II of the 1 st schedule. If the
offence is punishable with imprisonment for three years or
more, it is non-bailable. Where the punishment is less than
thee years or with fine only, it is bailable.
13. Investigation
(a) This term has been defined in Sec. 2(h) Cr. PC. The
definition is, however, not exhaustive.
(b) Literally investigation means, following up step by step by

observation, examination, and inquisition.
(c) Investigation implies ascertainment of facts, shifting of

materials and search for relevant data.
Referenced : AIR 1968, Orissa 20.
(d) Under the Cr. PC, Investigation may be conducted either by

a Police Officer or by any person, other than a Magistrate.
(e) The object of investigation is collection of evidence.
(f) Police Investigation generally consists of the following steps:
(i) Proceeding to the spot.
(ii) Ascertainment of the facts and circumstance of the

case.
(iii) Discovery and arrest of the suspected offender.
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(iv) Collection of evidence by the processes indicated below

or any other lawful means:-
Examination of various persons including the accused.
. Reduction of the statements of such persons to

writing (discretionary and optional).
. Seizure of things considered necessary.
. Search of places
(v) Formation of opinion as to whether on the material

collected, there is a case to place the accused for trial
and if so, taking necessary steps for the same by filing
of a charge-sheet u/s 173(2) Cr. PC.
Reference (i) AIR 1955 SC 196

(ii) AIR 1959 SC 707
14. Inquiry:
(a) Inquiry, according to Sec. 2(g) Cr.P.C. means every inquiry,

other than a trial, conducted under the Code, by a
Magistrate or a Court.
(b) It follows that inquiry, as contemplated in the Cr.P.C. can be

held either by a Magistrate or by a Court.
(c) What is done by a Police Officer under the Cr.P.C. can never
be described as Inquiry.
(d) Inquiry is distinct and different from trial. In practice, trial

begins when the inquiry ends.
(e) The object of inquiry is determination of truth or falsehood of

certain allegations with a view to taking further action
according to law.
Reference: (i) AIR 1920 Patna 563

(ii) AIR 1940 Calcutta 97
(f) Inquiry may be of different kinds such as:-
(i) Judicial Inquiry
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(ii) Non-Judicial/Administrative Inquiry
(iii) Preliminary inquiry
(iv) Local Inquiry
(v) Inquiry into an offence
(vi) Inquiry relating to a matter other than an offence.
(g) Inquiry may involve examination of witnesses and inspection

of the locale.
15. Investigation and Inquiry- differences
Investigation Inquiry
(i) By whom By a Police Officer or a By a Court or by a
person other than a Magistrate
Magistrate who is
authorised by a Magistrate.
(ii) Object Collection of evidence Ascertainment of truth
(iii) Nature Always non-judicial It may relate to an

offence or any matter
other than an offence.
(v) Initiation It commences when there It may start on vague

are grounds for rumours with
investigation, based on shadowy beginning
information or otherwise. vide AIR 1968,
Madras 117.
(vi) Sequence In cognizable offence, police In a warrant case

investigation is a normal instituted other than
preliminary to the accused on Police report, the
being put up for trial. proceeding upto the
framing of the charge
is inquiry. Here, Trial
follows inquiry.
16. Trial
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(a) Cr. PC has not defined "trial".
(b) Judiciary, through its process of interpretation, has

endeavoured to supply that omission. It is:-
"A trial is a judicial proceeding which ends in conviction or

acquittal" vide AIR 1940, Calcutta 97, AIR 1929 Patna 644.
(c) A trial is a proceeding different from inquiry vide 1987 Cr. LJ

55.
(d) When inquiry stops, trial may begin vide 1957 Cr. L.J 937.
(e) Trial means whole of the proceeding including sentence vide

24 Cr.LJ 886.
(f) The right to reasonably speedy trial is a fundamental right

conferred by Article 21 of the Constitution of India vide AIR
1979 SC 1177.
(g) The Cr. PC in Sections 167, 209 and 309 has emphasised
the importance of expeditious disposal of cases including
investigations and trials vide AIR 1979 SC 1518.
17. Court - What it is?
(a) It has not been defined in the Cr. PC, although the classes of
Criminal Courts have been enumerated in Sec. 6 Cr. PC.
(b) In order to constitute a court in the strict sense of the term,

an essential condition is that the Court should have, apart
from having some of the trappings of a judicial tribunal,
power to give a decision or a definitive judgement which has
finality and authoritativeness which are the essential tests of
a judicial pronouncement.
Reference : 1955(2) S.C.R. 955.
(c) For the shake of brevity, the Criminal Procedure Code uses
"Court" and "Magistrate" generally, if not always, as
convertible terms.
Reference : 1953(2) S.C.R. 953.
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(d) A Magistrate is not a court unless he is acting in a judicial

capacity vide ILR 36 Calcutta 433.
18. Judicial - meaning of
The word "Judicial" has two meanings.
it may refer to the discharge of duties exercised by a Judge or by

Justices in Court or to administrative duties which need to be performed
in Court but in respect of which it is necessary to bear a Judicial mind-
that is a mind to determine what is fair and just in respect of matters
under consideration.
(1892) 1 QB 431
Quoted in AIR 1980 Kerala 18 Full Bench.
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POLICE INVESTIGATION
-an outline
I. Basically, Police is a Law-enforcement agency
Its main functions are :-
1) Prevention and Detection of Crime
2) Bringing offenders to Justice
3) Maintenance of Law and Order
4) Regulation of Traffic
II. Investigation
Its ordinary meaning :-
A systematic, minute and thorough attempt to learn the facts

about something, complex or hidden; it is often formal and official.
(Vide Hamlyn's Encyclopedic World Dictionary)
III. Investigation-legal notion
a ) Investigation means:-
(i) ascertainment of facts

(ii) sifting of materials
(iii) search for relevant data
(Vide state of Orissa Vs Pareswar reported in AIR1968 Orissa 20)
b) It is defined in Sec. 2(h) Cr. P.C. The definition is, however, not
exhaustive.
IV. The object of investigation:
It is collection of evidence.
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IV. Stages of investigation:-
1 (1) Proceeding to the spot

2
(2) Ascertainment of the facts and circumstances of the case
3 (3) Discovery and arrest of the suspected offender

4
5 (4) Collection of evidence relating to the Commission of Offence
6 (5) Formation of opinion as to whether it is a fit case for the

accused to be sent up for trial and if so, taking steps for filing
charge-sheet.
VI. Collection of Evidence-Different meanings
7 1) Examination of witnesses
8 2) Search of person and place
9 3) Seizure of things and documents
4) Scientific aids to investigation and reference to Experts for their

opinions.
10 5) T. I. Parade
11 6) Post-mortem Report/Injury Report
12 7) Confession and admission
13 8) Interrogation of the accused.
VII. Investigation and Inquiry - Points of difference
Points Investigation Inquiry

(1) By whom Police officer or a person Magistrate or Court
other than Magistrate, (Magistrate may be
duly authorised by Judicial or Executive)
magistrate (here judicial)
(2) Purpose Collection of Evidence Ascertainment of truth
or falsity of the alleged
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facts
Points Investigation Inquiry

(3) Character Can never be judicial May be judicial or
non-judicial.
(4) Commencement It starts when there are May start with

grounds for investigating shadowy beginnings
a Crime and vague rumours.
(5) Context It relates to an offence May be in respect of
and is held in the context an offence or a matter
of suspected or alleged other than an offence.
ommission of an offence.
VIII. Investigation- A normal preliminary in cognizable offence
a) In criminal cases involving cognizable offences, police

investigation is a normal preliminary to the accused being
put up for trial.
b) Investigation usually starts as soon as information relating

to the commission of a cognizable offence is given to the
Police Station.
c) Receipt and recording of an FIR is, however, not a condition

precedent to the launching of police investigation.
d) Police can, in a case involving a cognizable offence, start

investigation, without any order from the Magistrate, on
receipt of information or otherwise (Vide Sec. 157 (1) Cr. PC.
IX. FIR- Its Characteristics
(i) It must disclose the commission of a cognizable offence.
(ii) It should be given to the o/c of a police station.
(iii) It should be earliest in point of time.
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Note: If all the above three conditions are satisfied, the information thus
lodged with the police and recorded u/s 154 Cr. P.C. may be
described and treated as FIR.
X. FIR- Other features :
(a) It may be in writing
(b) If given orally, it shall be reduced to writing by the police

officer.
(c) It should be signed by the person giving it.
(d) A copy of it should be delivered to the informant free of

charge.
(e) It may be made by any person, whether or not he has the

first hand knowledge about the crime reported.
(f) Delay, if any, in making the FIR should be explained in the

FIR itself.
(g) Strictly speaking, the Telegrams and telephonic messages

can not be treated as FIR, because they are not given in
writing duly signed by the informant nor they are reduced to
writing by the police and read over to the informant.
Moreover, there is hardly any guarantee as to their
genuineness/authenticity.
XI. Refusal by informant to sign the FIR
It is punishable u/s 180 IPC.
XII. The FIR- Its basic objects :
(a) To set the criminal law in motion through the agency of the
police.
(b) To furnish to the police early information of an alleged

criminal activity of cognizable nature
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XIII. Value of the FIR:-
(a) It is valuable because it gives the earliest version of the

occurrence .
(b) It is not a substantive piece of evidence.
(c) It can be used for the purpose of corroboration u/s 157

Indian Evidence Act.
(d) It can corroborate the maker if he is called as a witness.
Note : Normally the FIR is recorded before the starting of

investigation. Hence, the FIR does not come within the
purview of Section 162 Cr. P.C.
(e) It may be used for contradiction u/s 154 Cr. P.C. against the
author thereof.
(f) Some other uses of the FIR
(i) as a conduct u/s 8 I.E. Act, if lodged by the accused.

(ii) as an admission u/s 21 I.E. Act, if lodged by the
accused.
(iii) As a dying declaration, if lodged by the deceased
whose death is in issue.
(iv) As an entry by a public servant in the discharge of his
official duties u/s 35 I.E. Act.
XIV. FIR- Delay in lodging
(a) Delay, in lodging the FIR, if not sufficiently explained,

creates suspicion.
(b) Delay, without any explanation may be fatal to the

prosecution
XV. Refusal by the Police to Record FIR:
Remedy is provided by Sec. 154 (3) Cr. P.C. The person

aggrieved can send to the Superintendent of Police the substance
of the information by post.
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XVI. When the Magistrate may direct the Police to make

investigation.
(1) u/s 156 (3) Cr. P.C.

(2) u/s 159 Cr. P.C.
(3) u/s 202 (1) Cr. P.C.
(4) u/s 155 (2) Cr. P.C.
XVII. Custody
CUSTODY : It means physical detention.

Remand : "To send back"
Custody :-
(1) Police custody

(2) Judicial custody.
Safe custody : One who is held under the authority of law for his or
her safety (custody of a kidnapped girl)
XVIII. Remand - Relevant Sections
(1) During investigation - Sec. 167 Cr. P.C.
(2) After cognizance and - Sec. 309 Cr. P.C.

pending during trial.
(3) By Executive Magistrate - Sub-section 2 A of Sec 167

Cr. P.C.
Conditions :When an Executive Magistrate may remand
(1) Judicial Magistrate is not available at the Station.
(2) Powers of Judicial Magistrate or Metropolitan

Magistrate have been conferred U/ss. 13 and 18 Cr.
P.C., upon the Executive Magistrate.
(3) Accused forwarded by the O/C or I.O. not below the

rank of S.I. along with a copy of the case diary.
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Remand to Police Custody/Jail Custody
Maximum period of detention during police investigation :-
(1)90 days: When the offence is punishable with

Death/Imprisonment for life/Imprisonment for
ten years or above.
(2)60 days: any other offence
This period should be computed from the date of remand of the

accused and not from the date of his arrest.
XIX. Search and Seizure (References only)
Search Procedure :
(1) Section - 47 Cr. P.C.
Search of a Person :
Powers of Police to Seize without Warrant:
Section - 102 Cr. P.C.
XX. Search warrants (Reference only)
1) Section - 93 Cr. P.C. - General Search
2) Section - 93 Cr. P.C. - Stolen property forged documents
3) Section - 95 Cr. P.C. - Forfeited publications
4) Section - 97 Cr. P.C. - Wrongfully confined persons.
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XXI. Search without warrants (References only)
1) Magistrate
. SECTION 103 Cr. P.C.
2) Police Officer (O/C)
. SEC. 165 Cr. P.C.
. SEC. 166 Cr. P.C.
. SEC. 153 Cr. P.C.
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BAIL
1. BAIL - it meaning
(a) The term 'bail' has not been defined in the Code of Criminal
Procedure or in any other statute.
(b) It is used both as a noun and as a verb. When used of as noun, it

generally means "security". the original meaning of "bail" is,
however, slightly different. It denotes the person who stands as
"surety".
(c) When used as a verb, it means releasing of a person from legal

custody on security being taken for his/her appearance in Court in
future. It is in this sense that this term is generally employed.
(d) Ordinarily, the question of bail arises when a person is arrested or

detained or some kind of restraint is imposed upon him.
(e) When such a person is granted bail, he is set at liberty upon his
furnishing a bond, with or without surety, for his/her attendance at
the time and place specified therein. The place is generally a certain
court.
2. BOND - what it implies
(a) Bond implies a written obligation. It is an instrument whereby a

person binds himself for doing something or paying a specified sum
of money.
(b) Bail-Bond is the bond by which bail is given. It is a written

undertaking executed by the accused, with or without sureties, to
the effect that he shall appear in Court and render himself amenable
to the process of the Court.
3. SECURITY - its import
(a) Its literal meaning is "protection" or "indemnification".
(b) In the ordinary sense, It means the money or thing pledged.
(c) It is anything which makes the money more assured or more readily
recoverable.
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(d) This term is also applied to mean a person who stands as surety.
4. SURETY
He is the person who procures the release of the accused from

custody by undertaking to ensure the attendance of the accused in Court
and in the event of the accused not attending, to pay to the Government
such sum of money as stipulated.
5. BAIL - a clarification
(a) Security is of two kinds, namely,
(i) the simple one furnished by the accused himself without any
surety. this is commonly called "personal recognisance" (PR);
and
(ii) Security with one or more sureties. In the Cr.P.C., It is in

this sense that the term "bail" has been used.
(b) The Supreme Court has, however, enlarged the meaning of the term
"bail" to include also the security furnished only by the accused
himself without any surety. Hence, bail now covers both kinds of
securities.
6. Division of offences from the angle of Bail
(a) Offences have been classified under two heads, namely,
(i) Bailable offence

(ii) Non-Bailable offence.
(b) Bailable offence means an offence which is shown as bailable in the

First Schedule appended to the Cr.P.C. or which is made bailable by
any other Law. (vide Sec.2(a) Cr.PC).
(c) Non-Bailable offence is that offence which is not bailable.
(d) What has been stated above is not a definition. If you wish to find
out whether a particular offence under the IPC is bailable or non-
bailable, then turn to the 1st schedule and locate the penal section
for that offence under column No. 1. Column No.5 of that schedule
will tell you whether the offence is bailable or non-bailable.
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(e) If the offence is one under any law other than IPC, then check up
that enactment. If the offence has been made bailable thereunder, it
is bailable. If the offence is declared by the Act to be non-bailable,
then it is non-bailable. If that Act is silent on that point, then you go
by the maximum punishment prescribed by that Act for that offence.
If the offence is punishable ,with death or imprisonment for three
years or more, it is non-bailable. If the offence is punishable with
imprisonment for less than three years or with fine only, then it is
bailable.
7. The real meaning of the terms - Bailable offences and non-

bailable offence
(a) Bailable offence really means an offence where bail is a matter of

right for the accused. He is entitled to be released on bail as a
matter of course. The Court or the Police can not say "No" to him,
save and except in a special situation spelt out in subsection (2) of
Sec.436 Cr.P.C.
(b) Non-bailable offence does not mean that bail can not be granted at
all. It only implies that In a case involving non-bailable offence, bail
is a matter of discretion for the authority competent to grant bail.
The accused has not the right to be enlarged on bail. It is for the
Court or Police to decide, due regard being had to the facts and
circumstances of the case and bearing in mind the limitations
imposed by law, if any, whether or not bail ought to be granted to
the accused.
8. Authorities competent to grant bail
(a) The officer-in-charge of a police station.
(b) Any police officer superior in rank to the officer-in-charge may also
exercise the same power within the local limits of that police station
vide Section 36 Cr.P.C.
(c) High Court and the Court of Sessions.
(d) Subordinate Courts, which include Trial Courts and Judicial

Magistrates.
Where the Law relating to bail may be found
(a) This question may be approached from the three different angles,
namely,
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(i) Police powers regarding bail.

(ii) Competence of the Subordinate Courts for grant of bail.
(iii) Jurisdiction of the High Court and Court of Sessions in
respect of bail matters.
(b)Police Powers
Reference may be made to Sections 42(2), 43(3), 81, 169, 170, 436,
437(1) and (2) Cr.PC.
(c) Competence of Subordinate Courts
We may advert to Sections 71, 81, 88, 167, 330, 395(3) 436 and 437
Cr.PC.
(d) Jurisdiction of the High Court and Court of Sessions
Sections 438 and 439 are specific provisions to conferring wider

jurisdiction upon the High Court and Court of Sessions in respect of bail
matters.
(10) If you like to go about section-wise, it will lead to the formulation of

the following Table which will point to the main legal provisions
touching upon 'Bail'. This arrangement is designed to enable you to
have a rough idea at a glance.
Sections Nature of Nature of Authorities

of Law bail Offence competent
a) Sec.436 Ordinary Bailable Subordinate Court
and Police.
b) Sec.437 Ordinary Non-bailable -do-
c) Sec.438 Anticipatory Non-bailable High Court and
bail Court of Sessions.
d) Sec.439 Ordinary Bailable and -do-
Non-bailable
11. Categorisation
(a) From what has been indicated above, it will appear that bail, as
envisaged in the new Code of Criminal Procedure, is of two kinds,
namely,
(i) Ordinary bail
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(ii) Anticipatory bail.
(b) The only Section in the Cr.PC which deals with "Anticipatory Bail" is
Section 438 Cr.PC. 'The remaining sections relating to bail, as
referred to earlier, speak of "ordinary bail".
(c) The ordinary bail is a post-arrest while anticipatory bail is a pre-

arrest process.
Note: Section 438 Cr.P.C has been deleted by a local amendment of the
U.P. State Legislature and as such, anticipatory bail does not apply
to U.P.
12. Philosophy of bail
(a) Individual liberty and social security often come in conflict with each
other.
(b) Both these rival interests are important and as such, have to be
harmonised as far as possible.
(c) As soon as a person is arrested, his personal liberty is invaded and

curtailed at the same time, interest of the society as a whole may
have made it incumbent upon the police to arrest him for prevention
or detection of crimes. His detention in custody may also become
necessary for investigation/ inquiry / trial.
(d) The investigation may prolong and even if it ends in charge-sheet,

trial will take its own time to come to an end.
(e) Hence, during investigation/inquiry/trial, the accused need not

unnecessarily be detained in custody. That will be a violation of his
fundamental right.
(f) Bail is a mechanism by which a balance is sought to be struck

between individual Liberty and Social Security.
(g) After arrest, the accused ought to be released on bail unless his
detention is essential in larger interest of the Society or in
advancement of the cause of Justice.
(h) When the conflicting claims of Individual Liberty and Social Security
can not be reconciled, it is the social security that must prevail over
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individual liberty and in such a circumstance, the accused has to be

detained by denying to him the benefit of bail.
(i) The slogan is "Bail and not Jail". This can not, however, be
transformed into an absolute mandate. Hence, the Police Authority
and the Court have been vested with the discretionary powers to
decide whether in a given case involving non-bailable offence, the
accused should or should not be granted bail pending investigation,
inquiry or trial.
(j) Bail is not to be withheld by way of punishment. There is a

presumption of innocence in favour of an accused, which continues
till his guilt is established at the end of the trial.
13. Bail in bailable offence
(a) Magistrate or Police authority, as the case may be, is competent to

grant bail u/s 436 Cr.PC.
(b) Bail is a matter of right for the accused.
(c) Bail in a bailable offence can be refused by the Court only where the
accused, after having been granted bail in the same case on an
earlier occasion, failed to appear before the Court on the date fixed.
In other words, when he misused the liberty of earlier bail and
absconded.
(d) While granting bail in a bailable offence, no condition, other than

the one for attendance of the accused. can be imposed.
14. Bail in non-bailable offence
(a) The powers of the Magistrate and the Police to grant bail in non-
bailable offences are limited.
(b) Neither the Magistrate nor the police authority is competent to grant
bail in the following cases.
(i) When there appear reasonable grounds for believing that the
accused is guilty of an offence punishable with death or
imprisonment for life.
(ii) When the offence is cognizable and the accused had been
previously convicted of an offence punishable with death or
imprisonment for life or imprisonment for seven years or he
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had been previously convicted on two or more occasions of a

non-bailable and cognizable offence.
(c) Even in a case falling within the purview of paragraph 14 (b) above,
the Magistrate has discretion to grant bail when the accused is:
(i) Child under 16 years or

(ii) Women or
(iii) Sick or
(iv) Infirm.
(d) Bail, may be granted at any stage of investigation inquiry or trial,

even when the allegations involving a non-bailable offence are
serious if the Police Officer or Court does not find prime facie
evidence to connect the accused with the crime, although there are
sufficient grounds for further inquiry. This ought to be done after
giving the prosecution reasonable opportunity of collecting evidence
of an incriminating nature.
(e) Pendency of a Test Identification Parade is not a sufficient ground

for refusal of bail, provided that the accused gives an undertaking
that he shall take part in it.
(f) While granting bail in the cases covered by sub-sec.(3) of the 437
Cr.P.C, the Court may impose conditions in the interests of Justice.
(g) The High Court and the Court of Sessions have greater powers u/s
439 Cr.P.C. to grant bail. There is no bar to the High Court or the
Court of Sessions admitting an accused to bail even in cases
involving an offence punishable with death or imprisonment for life.
15. Relevant consideration for exercise of powers of bail
(a) Nature and gravity of the offence alleged.
(b) Character of evidence collected in support of the allegations.
(c) Severity of the punishment a conviction may entail.
(d) The probability of the accused absconding.
(e) The danger of the accused tampering with evidence or bullying

witnesses.
(f) The health, age and sex of the accused.
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(g) The Character and standing of the accused.
(h) Law and Order situation.
(i) General interest of the State.
(j) Larger Interest of the Society.
(k) Protracted nature of investigation or trial.
(l) Need to give reasonable opportunity to the accused to prepare for his
defence.
(m) Circumstances which are peculiar to the accused.
(n) History of the case.
(o) Likelihood of the accused jeopardising his own life being faced with
the grim prospect of a possible conviction.
(p) Danger of the accused repeating the crime.
(q) Such other relevant factors which are variable and cannot be
exhaustively set out.
16. Bail as a matter of right if the investigation is not completed

with in the stipulated period of time.
(a) Section 167 Cr.P.C. provides for compulsory bail during the stage of
investigation if the investigation is not completed within 60 days or
90 days, as the case may be.
(b) Ninety-Days are available when the investigation, relates to offence

punishable with death, or imprisonment for life or imprisonment for
not less than ten years.
(c) Sixty days will be applicable when the investigation relates to any
other offence.
(d) In a situation of this nature, the accused becomes entitled to bail on

lapse of the stipulated period, irrespective of the merit of his case.
(e) The accused may, however, be detained beyond 60 days or 90 days.

as the case may be, if he does not furnish the bail required of him.
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(f) As soon as the charge-sheet is submitted within the stipulated

period of 90/60 days, Section 167 Cr.P.C. goes out of picture and
ceases to operate.
(g) If charge-sheet is submitted within 90 days/60days and cognizance

is taken by the Court, the accused may still be remanded to custody
beyond 90/60 days by virtue of the power vested in the Court u/s
309 Cr.P.C.
(h) Compulsory bail on lapse of the statutory period is designed to

expedite the process of investigation and to put indirect pressure
upon the police to complete the investigation within such period of
time.
17. Anticipatory Bail
(a) This term does not occur in Sec.438 Cr.P.C or any other section of
the Cr.P.C, yet what is provided for in Section 438 is known as
anticipatory bail. Sec.438 Cr.P.C is new and based on the
recommendation of the Law Commission.
(b) Courts competent to grant anticipatory bail
Either the High Court or the Court of Sessions is competent to

grant anticipatory bail and no other Court. Supreme Court has appellate
Jurisdiction under Article 136 of the Constitution of India to decide
appeal from an order passed by the High Court or Court of Sessions
granting or rejecting anticipatory bail.
(c) Condition for invoking the aid of Section 438 Cr.P.C
The applicant has reason to believe that he may be arrested on

accusation of having committed a non-bailable offence.
In other words, the following conditions should be present:
(i) Apprehension of arrest;

(ii) Such apprehension must be based on reasonable belief;
(iii) The arrest apprehended must be in connection with a non-
bailable offence;
(iv) The applicant has not yet been arrested.
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(d) An order u/s 438 Cr.P.C is in the nature of a direction to the effect
that in the event of the accused being arrested, he shall be released
on bail. Hence, it takes effect as soon as the applicant is arrested.
(e) Conditions may be imposed while granting anticipatory bail.
(f) The mere fact that a person has got an order u/s 438 Cr.P.C does
not prevent the Police from arresting him. The only obligation is that
as soon as the arrest is made, the accused shall have to be released
on bail provided that he furnishes the bond as required.
(g) There cannot be a blanket order for anticipatory bail. There should
be particulars sufficient enough for identifying the case to which an
order for anticipatory bail relates.
18. Anticipatory Bail and Ordinary Bail- the points of difference in a

tabular form
Anticipatory Ordinary
(i) It is a pre-arrest It is a post-arrest process.

process.
(ii) Available only in Available in non-bailable

Non-bailable offence. and also in bailable offences.
(iii) Only High Court and Court Besides High Court and Court
of Sessions may grant. of Sessions subordinate
courts including Magistrates
and Police authorities may grant.
(iv) Extra Ordinary remedy. Ordinary Remedy.
(v) Additional conditions may Only conditions contemplated

be imposed to ensure that in Section 4373) may be
investigation is not imposed.
hampered with, besides
those contemplated in Sec.
437(3) Cr. PC.
(vi) In the nature of a direction Executable as soon as the

and it takes effect when the order is delivered.
person is arrested.
19. Consideration for grant or refusal of anticipatory bail
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(a) "The power of granting anticipatory bail is somewhat extra ordinary

in character and it is only in exceptional cases where it appears that
a person might be falsely implicated or a frivolous case might be
launched against him or there are reasonable grounds for holding
that a person accused of an offence is not likely to abscond or
otherwise misuse his liberty while on bail that such power is to be
exercised". (vide Balanchand Jain vs. State of M.P. reported in 1977
Cr.IJ 225 Supreme Court).
(b) "If the proposed accusation appears to stem not from motive of
furthering the ends of Justice, the object being to inure or humiliate
the applicant by having him arrested, a direction for the release of
the applicant on bail in the event of his arrest would generally be
made. "Gurbaksh Singh Sibbia vs. State of Punjab 1980 Cr.LJ 1125
S.C.)
(c) Apart from the guidelines set forth above on the basis of the
authorities of the Supreme Court, some other factors which should
guide the discretion in case of ordinary bail. such as nature and
seriousness of the proposed charges, the contexts of events, a
reasonable possibility of the applicants' presence not being secured
at the trial, a reasonable apprehension that the witnesses will be
tampered with, larger interests of public or the State, should also be
taken into consideration while deciding an application for
anticipatory bail.
20. Cancellation of bail
(a) Bail in a bailable offence, may be cancelled by the High Court or the
Court of Sessions, irrespective of whether it was granted by it or by a
subordinate court or by the Police.
(b) Bail granted by the subordinate Court (say, the Magistrate) u/s 436
Cr.P.C. can not be cancelled by that Court. The question of
cancellation of bail by the Police does not arise at all.
(c) Bail granted by a subordinate Court in a non-bailable offence may

be cancelled by that Court u/s 437 (5) Cr.P.C.
(d) Bail granted by the Police or by the subordinate Court in a non-

bailable offence may also be cancelled by the High Court or the
Court of Sessions us 439 (2) Cr.P.C.
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(e) Bail granted by the Court of Sessions in non-bailable offence may be

cancelled of Sessions or the High Court.
(f) Bail granted by the High Court in non-bailable offence may be

cancelled by the High Court.
(g) An anticipatory bail granted by the Sessions Judge u/s 438 Cr.PC
may be cancelled by the Sessions Judge himself or by the High
Court.
(h) An anticipatory bail granted by the High Court can be cancelled by

that High Court.
(i) Consideration for cancellation of bail are somewhat different from

those relevant reaction of an application for bail.
(j) The cancellation of bail necessarily involves review of the decision

already made and can, by and large, be permitted only if by reason
of supervening circumstance, it would no longer be conducive to a
fair trial to allow the accused to retain his freedom during trial vide
State Vs. Sanjay Gandhi reported in 1978 Cr.LJ 952).
(k) Grounds for cancellation may be summed up as follows:
(i) Interfering or attempting to interfere with the course of Justice.
(ii) Causing disappearance of evidence.
(iii) Evading or attempting to evade the course of Justice.
(iv) Abusing the liberty. vide 1987 Cr.IJ 705: S.C.).
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TEST IDENTIFICATION PARADE
(1) What is T.I. Parade?
(a) The expression 'T.I. Parade" stands for 'Test Identification parade.
(b) It is a step in the investigation of a crime.
(c) It belongs to the stage of investigation.
(d) It is a process by means of which a suspect arrested by the police or

any property recovered by the police in course of investigation is put
up, along with other persons or similar properties, for the purpose of
identification by the witnesses, with a view to testing whether the
suspect arrested is concerned in the crime or the property recovered
is the subject matter of the crime.
(2) Importance of the T.I. Parade
(a) It is important both from the viewpoint of the investigating agency

and also of the accused.
(b) If the accused is identified by one or more witnesses at the T.I.

Parade. it furnishes assurance to the Investigating Agency that the
Investigation is proceeding on the correct line.
(c) On the other hand, if the accused is not identified by any witness at
the T.I. Parade, he may be relieved, because in such event, he is not
liable to be charge-sheeted by the police unless there is other
evidence to justify submission of charge-sheet.
(3) Kinds of T.I Parade
They are of two kinds, namely i) T.I. Parade of persons ii)) T.I.
Parade of properties.
(4) Who may conduct T.I. Parade ?
(a) Generally speaking, a T.I. parade may be conducted by any person

other than a police officer.
(b) Strictly speaking, a T.I. Parade ought to be conducted by a

metropolitan Magistrate or a Judicial Magistrate.
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Note T.I. Parade being a step in the investigation, it is ordinarily the

Investigating Agency, namely, the police, at whose instance T.I.
Parades are generally held by the Metropolitan Magistrates or the
Judicial} Magistrates, ether in the Court or in the Jail.
(5) Objectives of the T.I. Parade
(a) They are twofold, namely, to (i) test and (ii) Strengthen the
trustworthiness of the evidence.
(b)What a witness testifies in court as to the identity of an offender

or any stolen property is the substantive evidence.
(c) A case, however, comes up for trial before the Court after a lapse of
time. Hence, it is expedient to hold T.I. Parade at the earliest
possible opportunity during the stage of investigation.
(d) T.I. Parade should. therefore, be held immediately after the arrest of
the suspect without any unnecessary delay.
(e) The result of the T.I. Parade may be positive or negative.
(f) If positive, it lends corrobation to the testimony of the witnesses in

court.
(g) What a witness deposes before the court on the point of

identification at the time of trial gets support from what he
communicated earlier at the T.I. Parade on the point of
identification.
(h) The testimony of the witness in court is thereby tested and

strengthened with reference to the result of the T.l. Parade
conducted earlier when the impression in his mind was supposed to
be fresh and clear.
(6) Relevancy of T.I. Parade
(a) All facts which establish the identity of a person or thing are
relevant under Sec. 9 of the Indian Evidence Act.
(b) Identification evidence, is, therefore, relevant U/S 9 of the Indian

Evidence Act.
(7) When the T.I. Parade evidence is admitted in Court
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(a) T.I. Parade is held during investigation.
(b) The magistrate conducting the T.I. Parade records the results of the
T.I. Parade and the Magistrate who conducted the T.I. Parade are
called to give evidence in court.
(c) The T.I. Parade Magistrate as witness proves in court what

happened at the T.I. Parade (the result of the T.I. Parade).
(d) The eyewitnesses may identify the accused in court at the trial.
(e) Once such identification is made by the eyewitnesses in court, their

evidence in court on the point of identification receives corroboration
from the evidence of the T.I. Parade.
(f) If the eyewitnesses fail to identify the accused in court at the trial,
the T.I. Parade evidence can not be used for the purpose of
corroboration, because there remains nothing in their testimony on
the point of identification to be corroborated.
(8) Cases where T.I. Parade of persons ought to be held
(a) Where the offender was seen by any person (call him witness) at the
time of occurrence and (b) When the offender was not known to that
person (witness) from before.
(9) Procedure for holding of T.I. Parade of persons abroad outline
(a) may be held in courtroom or Jail compound preferably by a

judicial/metropolitan Magistrate.
(b) the suspects should be mixed up with innocent persons, namely

U.T. prisoners, if held in Jail or outsiders if held in courtroom. in the
proportion of 1:10.
(c) the innocent persons referred to in clause (b) above should be of

same age, height, build. general appearance and similarly dressed.
(d) the witnesses should be called one by one to the venue where the
T.I. Parade is being held.
(e) After a witness has finished his job, the order of suspects and
innocent persons in the line should be altered.
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(f) When a particular witness is in. the other witnesses, if any, ought to
be kept at a reasonable distance, taking care to ensure that they are
not in a position to see or hear the ldentifying witness.
(g) No police personnel should be allowed to remain present at the

venue of the T.I.. Parade.
(h) the statement of each witness relating to identification, any, ought to

be recorded by the Magistrate then and there. i) The Magistrate
should also note down the objection of the suspect, if any. ) Holding
of T.I. Parade should not only be fair but should also appear to be
fair.
(10) Appreciation of the T.I. Parade evidence
In assessing the weight to be given to the evidence of T.l.

Parade, the following points ought to be considered:
(i) was the suspect known to the witness from before?
(ii) was there any delay in holding of the T.I. Parade?
(iii) what kind of opportunity the witness had to see the offender at the
time of occurrence?
(iv) Did the witness have chance to see the suspect or his photograph
after the occurrence and before the T. I. Parade?
(v) Did the witness make any mistake?
(vi) was there anything outstanding or extraordinary in the

features/conduct of the suspect which impressed him?
(vii) Were sufficient precautions taken to ensure fairness?
(11) Sections of law bearing on the T.I. Parade
(a) Identification evidence is relevant U/S 9 of the Indian Evidence Act.
(b) T.l. Parade held by a police officer is hit by Sec. 162 Cr.P.C.
(c) Statements made by witnesses at the T.I. Parades are really the
statements U/S 164 Cr. P.C. and as such, they may be recorded by
the Judicial Magistrates, or Metropolitan Magistrates. who are
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authorised US 164 Cr. P.C. to record statements of witnesses during

investigation.
(d) Previously, the police used to oppose bail of an accused on the

ground that he was required to be placed on T.I. Parade. Now that
ground is not available to the police.
The third proviso the Sec. 437 (1) makes it clear that the
mere fact that the T.I. Parade is necessary or pending is by itself not
a sufficient reason for rejecting a petition for bail made by the
accused.
(e) The statements made by witnesses at T.I. Parades are not

substantive evidence. There are previous statements which may be
used for the purpose of corroboration U/S 157 Evidence Act or for
contradiction under Sec. 155 I.E. Act, read with Sec. 145 I.E. Act.
Note :The object of contradicting a witness with reference to his

inconsistent previous statement is to impeach his credit.
Further readings
(A) Sections 9, 145, and 157 Evidence Act

(B) Sections 161, 162, 164 and 437 (1) third proviso of the Code of
Criminal Procedure.
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"POLICE REPORT"
1. What is "Police Report"
(a) Police Report means a report forwarded by a police officer to a

Magistrate under subsection (2) of Sec. 173 Cr.P.C. vide the
definition given in Section 2 (r) Cr.P.C.
(b) As soon as investigation of a case involving at least one cognizable

offence is completed by the police, the officer-in-charge of the police
station, where the case has been registered, has to submit a report
to the magistrate.
(c) The Magistrate here refers to any Magistrate competent to take

cognizance. He is generally a Judicial Magistrate, First Class. A
Judicial Magistrate, Second Class. may also take cognizance,
provided that he is specially empowered to do so by the Chief
Judicial Magistrate.
(d) Hence, the report submitted by the officer-in-charge of the police

station to the competent judicial magistrate at the end of
investigation, incorporating the results of the investigation and
containing the opinion of the Investigating Agency, is know as
"Police Report".
Note: It has a technical meaning as defined. Each and every report

submitted by the police is not to be designated as police Report".
2. Police Report what it should contain
(a) Names of the Informant and the accused.
(b) Nature of the information.
(c) Names and necessary particulars of the witnesses.
(d) Whether a prima facie case as to the commission of an offence has

been made out. If so, who appears to have committed the offence.
(e) Whether the accused has been arrested.
(f) Whether the accused has been released on bail, if so, with or
without sureties.
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(g) Whether the accused has been produced before the Magistrate
under arrest.
Note: The police report should be in the form prescribed by the State
Government.
3. Police Report - it reflects police opinion
(a) The final step in the investigation of an offence is the formation of

opinion by the O.C. of the P.S.
(b) The opinion ought to be based on the evidence collected in course of

investigation.
(c) The ultimate opinion to be formed by the police is whether the case
in hand is one which ought to be sent up for trial.
(d) This will mainly depend upon:
(i) whether the case is true or false.
(ii) if true, whether the offenders have been discovered or not.
(iii) whether they have been arrested or not.
(iv) whether there is sufficient evidence to prosecute them.
4. Police Report - its nature
(a) Police reports may be broadly categorised under two heads, namely:
(i) charge-sheet and (ii) Final Report.
(b) If the case is sent up for trial, the report made therein is known as
"charge sheet"
(c) whether the case is not sent up for trial, the report submitted by the
police is called "Final Report"
5. Final Report - the circumstances in which it may be submitted:
(a) At the close of investigation, the police may find that the case
reported is true but no clue is available, despite efforts made in that
direction. Here, the case remains undetected and the report that the
O.C. submits to the Magistrate is known as "Final Report" (F.R.
TRUE).
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(b) At the end of the investigation, the police may find that the case
reported is false. In such an event, the question of sending up
anybody for trial for the offence reported earlier does not arise. The
report that the O.C. will submit to the Magistrate is also called 'final
Report' (F.R. False).
The O.C. may, however, proceed against the Informant who

lodged false information with the police. Action may be either U/s
182 I.P.C. or u/S 211 I.P.C. as the case may be.
(c) At the end of investigation, police may find that the case is neither
true nor false, that is, based on mistake of facts or is of civil nature.
In such event, the O.C. will also submit a final report.
(d) At the end of investigation, the police may find the case true, and
discover the offender but the evidence forthcoming is insufficient to
justify prosecution of the accused. Here again, the police will have to
submit a final report on the ground of Insufficient evidence. Such a
case falls U/S 169 Cr.P.C.
6. Charge Sheet
(a) It means the police report by which the police seek to place the
alleged offender on trial and invite the Magistrate to take cognizance
for the purpose of proceeding against him according to law.
(b)A charge sheet is submitted when the case is covered under Sec.
170 Cr.P.C. that is, when at the end of investigation, it appears to
the O.C. of the P.S. that there is sufficient evidence or reasonable
grounds for trial of the accused.
7. What the Magistrate should do on receipt of the Police Report?
(a) This will depend upon the nature of the police report.
(b) If it is a charge-sheet, the Magistrate may take cognizance upon the

"police report".
(c) On the other hand, if the Magistrate is of opinion that the facts
disclosed in the police report do not make out an offence or that
there is no sufficient evidence for trial, he may decline to take
congnizance upon that charge-sheet.
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(d) If the report submitted by the police is a final report, the Magistrate
may agree with it and direct the case to be dropped and the accused,
if arrested, to be discharged.
(e) On the other hand, if the Magistrate does not accept the final report
he may take any of the following steps:
(i) He may direct further investigation to be made by the police U/S

156 (3) Cr. P.C.
(ii) He may ignore the conclusion of the police and take cognizance of
the offence U/S 190 (1) (b on the material available in the police
report.
It would be on the basis of the statements of witnesses and

upon the facts disclosed by the police report, not withstanding the
opinion of the police to the contrary.
(iii) If a petition of protest is filed by the party aggrieved at the final

report, the Magistrate may treat that petition as complaint and take
cognizance U/S 180 (i) (a) Cr.P.C.
8. Can the Magistrate direct the Police to submit the Charge

Sheet?
Ans. No, he cannot. To direct the police to submit a charge-sheet is to

ask them to do a particular thing in a particular way during
investigation which is tantamount to interfering with the police
investigation.
Police alone have full control over investigation and the

Magistrate has no power to interfere with such proceedings.
9. Can the police make further investigation on after a police

report U/S 173(2) Cr.P.C. has been submitted to the Magistrate?
Ans: Yes, the provisions as contained in subsection (1) of Section 173

Cr.P.C. recognise the right of the police to make further
investigation, even after the submission of a final report U/S 173 (2).
Police may, therefore, reopen investigation and submit a

supplementary charge sheet.
10. A cognizable case reported to the police but the case. after
police investigation is found to be non-cognizable
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In such a situation, the report submitted by the police

should be deemed to be a complaint vide the explanation below the
definition of the term complaint' as given in Sec. 2 (d) Cr.P.C.
The Magistrate may take cognizance upon that complaint

U/S 190 (1) (a) Cr.P.C. and proceed U/S 200 Cr. P.C. and other
provisions of Chapter XV, Cr. P.C
11. Taking of cognizance- the meaning of the expression
(a) To take cognizance, in the context of presentation of a complaint or

submission of a police report to the competent Magistrate, is to take
judicial notice of the alleged commission of the offence with a view to
proceeding according to law.
(b) It does not imply any formal action on the part of the Magistrate.
What is actual involved is application of judicial mind to the
allegations made in the complaint or in the police report, for the
purpose of taking appropriate legal steps.
(c) Cognizance is taken of an offence and not of any accused.
Hence, the Magistrate cannot refuse to take cognizance upon

a charge-sheet where the accused has been shown to be an
absconder. 'The non availability of the accused is not a ground for
not taking cognizance of the offence alleged in the charge-sheet.
12. Institution of criminal proceedings in Court
(a) Mere presentation of a complaint or a charge sheet to the Court of

Magistrate does not constitute "institution of a criminal case in
court."
(b) A criminal case is said to have been instituted in a court only when
the Magistrate takes cognizance of the offence alleged therein.
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INQUEST - PRINCIPLES AND PROCEDURES
1. Inquest - its meaning
(a) This expression occurs in section 174 and sec. 176 Cr.P.C.
(b) Literally, it means a legal inquiry.
(c) Strictly speaking, it has been employed in the Cr.P.C to mean the
inquiry held u/s 176 Cr.P.C by a competent Executive Magistrate
into the cause of an unnatural or suspicious death.
(d) Loosely, it is also applied to refer to the investigation conducted by a

police officer u/s 174 Cr.P.C for the purpose of ascertaining the
apparent cause of an unnatural or suspicious death.
(e) Hence, the term, 'Inquest' is commonly used to mean either an

investigation by the police u/s 174 Cr.P.C or an inquiry by the
Magistrate us 176 Cr.P.C, undertaken by them under the Law to
find out the cause of an unnatural or suspicious death.
2. Death - its nature and onset
(a) Death means "permanent cessation of life".
(b) Life rests on the tripod of i) Brain (ii) Heart and (iii) Lungs.
(c) Death implies irreversible stoppage of their functions.
(d) This death is known as somatic death. 'Somatic' is an adjective and

it means bodily or corporeal.
3. Death Natural/ Unnatural
(a) When death occurs by the unassisted operation of natural causes, it

is called "Natural Death". "Ailments" fall within "Natural Causes".
(b) Unnatural death is one which is not natural, say for instance, death
due to violence.
(c) Unnatural death may be homocidal, suicidal or accidental.
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4. Need for Probe
(a) Unnatural or suspicious death calls for a probe.
(b) It needs to be looked into, for which Inquest is the mechanism built
by Law.
(c) The idea is to find out whether or not there was any foul play behind
such death.
5. Two agencies for such Probe
(a) They are (i) Police and (ii) Magistracy.
(b) Sec. 174, Cr.P.C, read with Section 175 Cr.P.C, relates to Police
whereas Section 176 Cr.P.C. refers to Magistracy on the executive
side.
6. Ten-point charter of duties of the Police in the context of an

Inquest
(i) Reporting such death to the nearest Executive Magistrate competent

to hold inquest.
(ii) Proceeding to the spot for investigating the cause of such death
unless otherwise directed.
(iii) Inviting at least two local and respectable persons to be present at

the Inquest.
(iv) Viewing the dead body and its surroundings carefully and closely.
(v) Noting down relevant features, such as number, position and

direction of injuries, signs of inflammatory reaction, signs of
struggle, presence of saliva, blood froth, semen, swab, vomit etc.
(vi) Examining witnesses supposed to be conversant with the facts and

circumstances of the case.
(vii) Preparing the report on the spot indicating, among other things, the
apparent cause of death.
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(viii) Affixing of the signature by the police officer to the report and also
getting therein the signature of the persons who witnessed the
Inquest and concurred with him (mentioned in clause (iii) above).
(ix) Forwarding the report to the DM or the SDM.
(x) Sending the dead body to the authorised medical officer for post
mortem examination unless the cause of death is clear and free from
doubt. A copy of the Inquest report should accompany the memo of
requisition for post mortem examination.
7. Five situations where post-mortem cases of unnatural or

suspicious death are compulsory
(i) Suicide by a woman within 7 years of her marriage.
(ii) Death of a woman within 7 years of her marriage where reasonable

suspicion exists as to commission of an offence against her.
(iii) Death of a woman within 7 years of her marriage where any of her
relatives makes a request to that effect.
(iv) There is any doubt regarding cause of death.
(v) The police officer considers it expedient to have the post mortem
done.
Notes:
(a) It is for the police to send the dead body to the authorised autopsy
surgeon for post mortem examination.
(b) Police has discretion not to send the dead body for post mortem
examination. Post mortem may be dispensed with when the case is
not covered by any of the five mandatory clauses specified in
paragraph (7) above.
(c) This discretion has to be exercised properly and honestly.
8. Power of the police In connection with holding of Inquest
(A) The police officer may call local and respectable persons to be
present at the Inquest.
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(B) The police officer may summon witnesses likely to throw light over
the cause of death.
(C) The police officer may examine such witnesses as mentioned in

clause (B) of this paragraph 8.
(D) The police officer may require the persons attending the Inquest and
agreeing with his finding to sign the report. (Here, the persons are
those referred to in clause of para 8.
(E) The police officer may call upon the witnesses to answer truly all
questions other than questions having a tendency to expose them to
a criminal charge or to a penalty or forfeiture.
(F) The police officer may register a crime suo moto if the Inquest
reveals the commission of a cognizable offence.
Notes:
(i) Non attendance in obedience to an order issued by the police officer

u/s 175 Cr. PC is punishable u/s 174 IPC.
(ii) Refusal to answer the police officer is punishable u/s 179 IPC.
(iii) Giving false answer to any question which the witness is bound to
answer truly may render him liable to be prosecuted and punished
u/s 193 IPC. It is, however, doubtful whether witnesses giving false
answers to Police may be prosecuted for perjury u/s 193 IPC. The
reasons are:(a) Oath cannot be administered by the Police and
hence, those statements are not on oath. (b) Such statements are
not required to be signed by the witnesses and as such, they can not
be held responsible for what the Police Officers may have taken
down. (c) the witnesses are not bound to answer questions which
may expose them to a criminal charge or penalty or forfeiture.
In appropriate cases, the statements made to police by

witnesses may render them liable to be dealt with u/s 202 IPC or
203 IPC.
(iv) The statements of the witnesses, if recorded by the police, shall not
be required to be signed by those witnesses.
(v)The persons to be called by the Police are of two types(a) persons

who witness the holding of Inquest and (b) Persons who may
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throw light over the cause of death from their own knowledge
and examined by the Police.
9. Duty of every villager and every village officer to give

information to the nearest Magistrate or to the officer incharge
of the nearest police station as to the occurrence of any sudden,
unnatural or suspicious death vide Sec. 40 (1) (d) Cr.P.C.
Omission to give such information is punishable u/s 176 IPC.
10. (i)The Magistrates empowered to hold inquests are:
(a) District Magistrate
(b) Sub Divisional Magistrate
(c) Any other Executive Magistrate specially empowered in this behalf

by the State Govt. or the District Magistrate.
(ii) It may be noted that a D.M. and a S.D.M. are Executive Magistrates,
placed in charge of a district and a subdivision respectively, by the
State Govt.
(iii) In the metropolitan towns of Calcutta and Bombay, inquest is

ordinarily held by the Coroner under the Coroner's Act, 1871.
11. Inquest by the Executive Magistrate When Mandator
In the following cases, it is compulsory for nearest Executive

Magistrate empowered to hold inquests, to make an inquiry into the
cause of death:
(a) When any person dies in the custody of the police
(b) The case involves suicide by a woman within seven years of her
marriage.
(c) The case relates to the death of a woman within 7 years of her
marriage in any circumstances raising a reasonable suspicion that
some other person committed an offence in relation to such woman.
Vide Sec. 176 (1) read with Sec. 174 (3), as amended by the Act 46 of
1983.
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12. Inquest - When Discretionary for the Executive Magistrate
In any other case mentioned in subsection (l) of Sec. 174

Cr.P.C, any Magistrate so empowered may hold an inquiry into the
cause of death either instead of or in addition to the investigation
held by the police officer.
13. Purpose of Section 176 Cr.P.C.
(a) Sec. 176 Cr.P.C. is probably based on the assumption that it is not
always safe or advisable to depend entirely upon the opinion of the
police, particularly when it relates to the death of a person in police
custody or it involves the suicidal or suspicious death of a woman
within seven years of her marriage. There should be a further check
and independent inquiry by a Magistrate.
(b) A magisterial inquiry is likely to inspire greater public confidence

and it may help to pacify ruffled or injured feelings that have been
created in the minds of the people by reason of violent or sudden
death of human being specially in police custody or of a bride under
suspicious circumstances.
(c) The proceedings of the Magistrate are intended to discover the cause
of death, that is, whether in a given case, the death was accidental,
suicidal or homocidal or caused by some animal.
(d) If upon such inquiry, It is found that reasonable suspicion of the

commission of any offence exists, a criminal case may be started.
Starting of a criminal case on the basis of such inquiry does not
offend the other provisions of the Code vide AIR 1959 Madras 294.
14. Police to give intimation about unnatural or suspicious death

immediately to the nearest Executive Magistrate empowered to
hold inquest. Such an obligation has been cast upon the police
by Sec. 174(1) Cr.P.C. Failure to do so may be dealt with u/s
176 IPC. Sec. 29 of the Police Act, 1861 may also be thought
about.
15. Executive Magistrate - his duty on receipt of such information
(i) The nearest Executive Magistrate empowered to hold inquests, on

receipt of information from the police or any other source, may, if he
thinks fit, direct the police not to hold inquest and upon such
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direction. police investigation should have to make way for

magisterial inquiry. D.M. or S.D.M. has power to issue general or
special order in this regard vide Sec. 174 (i) Cr.P.C. He should note
down the time and date of the receipt of the information and also
source of such information.
(ii) Where the magisterial inquiry is mandatory, the nearest Executive

Magistrate must and where the magisterial inquiry is optional, the
competent Executive Magistrate may proceed as promptly as
possible to the spot where the dead body is lying. Inquest is to be
held on the spot.
(iii) The Magistrate shall, wherever practicable, inform the relatives of

the deceased, whose names and addresses are known and allow
them to remain present at the inquiry. The expression "relatives"' in
this context, means parents, children, brothers, sisters and spouse.
(iv) He shall carefully examine the dead body and its surroundings. It is
desirable to do so in presence of two or more respectable inhabitants
of the neighbourhood.
(v) He should note down all relevant features, which include, among
other things, number, position and direction of wounds,
fractures, bruises and other marks of injury that may be found on
the body, signs of inflammatory reaction (swelling etc.) and signs of
struggle, if any.
(vi) Before he commences examination of the dead body, he should take

steps for identification of the deceased by at least two persons who
have known him from before his death. Marks of identification, if
any, should be noted. Photograph of the deceased ought to be taken.
(vii) He should examine the persons who are supposed to be acquainted

with the facts and circumstances of the case and record their
evidence. He has power to administer oath vide Sec.3 of the oaths
Act 44 of 1969, read with Section 176 (2) Cr.P.C.
(viii) Evidence of each witness should be recorded separately in the form

of a narrative. The proper way is to take down evidence in the first
person exactly as spoken by the witness. He may, in his discretion,
write any portion of the evidence in the form of question and answer.
(ix) If eyewitnesses are available, they should be called and examined, It

is, however, not necessary that all of them must be examined.
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(x) If eye witnesses are not available, the Magistrate may examine other
persons who may and look for such circumstances as are likely to
throw light over the cause of death.
(xi) In case of death in police custody, the general diary, connected case
Diary, Lock up Register and all other relevant records and
documents should be inspected. The sentry on duty during the
relevant period and the co-prisoners, if any, should be examined.
(xii) He should draw up the report giving his finding as to the cause of
death and if necessary, send copies to the DM or the SDM, as the
case may be.
16. In conducting the inquiry, the Magistrate shall have all the
powers which he would have in holding an enquiry into an
offence which includes, among her things, to issue processes, to
compel appearance of witness and production of things.
17. Powers of the Magistrate competent to hold inquest
(i) He may Issue processes.
(ii) He may compel appearance of witnesses and production of things.
(iii) He may administer oath to witnesses.
(iv) He may record evidence in the form of statements of witnesses.
(v) He may record confessions, even though not empowered u/s 164
Cr.P.C.
(vi) He may order the dead body to be disinterred and examined.
Notes:
(a) The proceeding conducted by an Executive Magistrate u/s 176

Cr.P.C is an inquiry within the meaning of Sec. 2(g) Cr.P.C.
(b) Such a proceeding also answers the description of judicial

proceeding "as defined in Sec.2 (i) Cr.P.C."
(c) The Executive Magistrate holding an inquest u/s 176 Cr.P.C does
not appear to be functioning as Court. The judicial decisions on this
point are, however, conflicting.
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(d) An Executive Magistrate holding an inquest is a public servant and

as such, contempt of his lawful authority is punishable under the
appropriate section of Chapter X of the Indian Penal Code.
18. District Magistrate cannot interfere in an inquiry u/s 176

Cr.P.C made by the SDM or any other competent Executive
Magistrate.
19. A Magistrate holding an inquest u/s 176 Cr.P.C. and not

empowered to record confession u/s 164 Cr.P.C can record
confession from any person who knows about the cause of
death. Such a confession is not governed by Sec. 164 Cr.P.C.
Ref: AIR 1953 Madras 138 (741), AR 1964 AP 548.
20. An inquiry u/s 176 Cr.P.C into the cause of the death is not
necessary when there is no corpse on which an inquest can be
held. Failure of the Magistrate to hold inquiry u/s 176 Cr.P.C,
when there was no corpse, is an irregularity curable u/s 465
Cr.P.C vide AlR 1945 Nagpur 143.
21. Inquest by Magistrate not empowered to hold inquest is curable

u/s 460(c) if done erroneously in good faith. His proceedings are
not liable to be set aside on that ground.
22. Magistrate holding inquest u/s 176 Cr.P.C - whether a Court
There is divergence of judicial opinion on this point:
a) According to one School, a Magistrate holding an inquiry u/s

176CrPC acts purely in an executive capacity and he cannot be
regarded a court within the usual acceptation of the term.
Ref: AIR 1968 Punjab 141 (146), 1972 CrLJ (HP AIR 1958 Punjab 430.
b) A contrary opinion was expressed in re-Laxminarayan Timmanna

Kaki (AIR 1928 Bombay 390 and also in Advocate General V., AIR
1940 Rangoon 68).
Note:The former view as indicated in clause a) above, appears to be

correct. There is nothing in Sec. 176 Cr.P.C which enjoins that the
Magistrate making an inquiry should make a report or arrive at any
finding. He, therefore, does not function as Court. A tribunal is a
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court. if only it has power to give a decision or a definitive

Judgement AIR 1956 S.C.66).
23. Inquest - Object of
(a) The object is merely to ascertain whether a person has died under
suspicious circumstances or has suffered an unnatural death and if
so, what is the apparent cause of death, namely, whether the death
is homicidal, suicidal or accidental.
(b) The Inquest Report should describe such wounds, fractures, bruises
and other marks of injury as may be found on the body and state, in
what manner and by what weapon or instrument (if any) such
marks appear to have been inflicted.
(c) The question regarding details as to how the deceased was assaulted
or who assaulted him or under what circumstances he was
assaulted was foreign to the scope of Inquest Proceedings. Hence, it
is necessary neither for the Police nor for the Magistrate to mention
these details in the Inquest Report (Podda Narayan and others
vs.State of A P. reported in AIR 1975 SC 1252).
(d) By and large, Inquest has four major components:

(i) Information
(ii) Investigation/Inquiry
(iii) Report
(iv) Disposal of dead body.
24. Inquest Report - its nature and admissibility
(a) Inquest Report is a document of vital importance, as it gives an

earlier version of occurrence and has to be prepared early (Om
Prakash 1979 CrLJ NOC) 141).
(b) A document like Inquest Report, consists of two parts, one of which
is admissible and the other is inadmissible. That part which is based
on actual observation on the spot is admissible u/s 60 Evidence Act.
The other part which is based on information given or statement
recorded by the Police, is inadmissible u/s 162 Cr.P.C, except for
limited purpose.
vide Rameshwar Dayal and others vs. State of Uttar Pradesh

reported in AIR 1978 SC 1558.
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(c) An inquest report cannot be pitted against the evidence of a Medical

witness given in court (Surjan AIR 1956 SC 425).
25. Inquest Report -evidentiary value
(a) An Inquest Report is a record of what the Magistrate or the Police

Officer observed and found.
(b) An Inquest Report or the statement contained in it does not

constitute substantive evidence.
(c) An Inquest Report which is based on examination of the dead body

can be regarded as the previous statement of the Magistrate or the
Police Officer who held It. It may be used:
(i) To contradict him u/s 155/ 145 Evidence Act.

(ii) To corroborate him u/s 157 Evidence Act (not when recorded by
the Police)
(iii) To refresh his memory u/s 159 Evidence Act.
(d) It may be used as confession u/s 24 Evidence Act.
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INQUEST REPROT U/S 176 Cr. PC

A Pro-forma containing broad guidelines
(In a case of unnatural, sudden or suspicious death within the

meaning of Sec. 174(1) Cr. P.C. where inquest has been held by a
competent Executive Magistrate)
1. Date, time and place when and where the Magistrate received
intimation u/s 174(1) Cr. P.C. about the death.
2. The substance of the information obtained by him and from

whom.
Note : You may take the assistance of the Police Officer

reporting the death with a view to informing the
relatives of the deceased as required u/s 176(4) Cr.
P.C.
3. The place where the dead body was found.
4. Inquest :
(a) Commenced at_______________(time)___________on (date)
(b) Closed at_____________________(time)___________on (date)
5. Dead body identified by (their names and essential

particulars)- Relatives may identify. If relatives are not
available, those who had known the deceased may identify.
6. Marks of identification, if any, such as moles, scars. etc.
7. Name, parentage, sex, age, caste and residence of the deceased.
8. Relatives, if any, present, at the Inquest (their names, addresses

and relationship with the deceased).
9. Names and other necessary particulars of two local and

respectable witnesses in whose presence the Inquest was held
(for Magisterial inquest, presence of witnesses to the Inquest
is not compulsory, though may be desirable).
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10. Description of the corpse (after close observation, of all parts

of the body in good light, generally under sun light during day
time). Cavities such as those pertaining to Nose, Ear, Mouth,
Vagina etc. should be closely examined.
Note down all relevant features, which include, among other

things, the following :-
(a) Position and attitude of the body.
(b) Number, position, length, breadth and direction of wound (s)

(not depth).
(c) Nature of wounds - incised, lacerated, bruises, fractures (so

far they are visible on external examination and could be
ascertained by a non-medical magistrate).
(d) Signs of ligature marks, if any.
(e) Signs of inflammatory reaction (swelling etc.) if any.
(f) Expression of countenance.
(g) Position of limbs, eyes and mouth.
(h) Presence of blood (liquid or clotted), saliva, froth, vomit,

semen, swab, etc. if any.
(i) Condition of clothes/ornaments.
11. Is the body well nourished and vigourous or emancipated and

weak?
12. Viewing of the surroundings in their totality with the dead

body lying therein.
Note down the following among other things
(a) Marks of violence or struggle.
(b) Articles such as rope, weapon, ammunition, instrument,

phial, used cartridge, chemicals.
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(c) Suicide note, if any.
(d) Foreign matters such as- weeds, straws etc. in the hair or
clenched in the hands of the deceased or attached to part of
the body.
(e) Are there circumstances available on the scene to show that

the deceased killed himself.
(f) Do you notice anything in the surroundings to suspect foul

play.
13. Number and Names of the witnesses examined by the

Magistrate and substance and weight of their Evidence.
NOTES :
(i) The witnesses referred to in clause (13) above should be

persons who appear to be acquainted with the facts and
circumstances of the case, in other words, who may be in a
position to throw light over the cause of death.
(ii) The statements of the witnesses should be recorded

separately.
14. Opinion of the Magistrate as to cause of death as could be

ascertained by him, based on his inspection of the scene, close
examination of the dead body and evidence adduced in the
witnesses.
15. Whenever there are wounds, fractures, bruises and other

marks of injury as may be found on the body, the Magistrate
should state in what manner or by what weapon or instrument,
if any, such injuries/marks appear to have been caused.
16. Sketch plan of the place where the dead body is found and
photograph taken, if any.
17. Has the Magistrate held the inquest in addition to or in lieu of

Police investigation (Inquest) U/S 174/175 Cr. P.C.
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18. Upon a consideration of the totality of the material including

the examination of the dead body, inspection of the scene and
testimony of the witnesses are there grounds for suspecting
foul play.
19. It is a case where the person died in police custody or coming

within clause (I) or clause (ii) of Sub-Section 3 of Section 174
Cr. P.C. where Inquest by an Executive Magistrate is
mandatory?
20. Actions proposed to be taken, if any, in pursuance of the

magisterial inquest (particularly if foul play is suspected or a
crime appears to have been committed).
21. Powers of the Executive Magistrate competent to hold inquest
(i) He may issue process.
(ii) he may compel appearance of witnesses and production of

things.
(iii) He may administer oath to witnesses.
(iv) He may record evidence in the form of statements of

witnesses.
(v) He may record confession, even though not empowered u/s

164 Cr. P.C.
(vi) He may order the dead body to be disinterred and examined.
(vii) DM or SDM may by general or special order, direct the Police

not to hold inquest.
Notes :
(a) The proceeding conducted by an Executive Magistrate u/s

176 Cr. PC is an inquiry within the meaning of Sec. 2 (g) Cr.
P.C.
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(b) Such a proceeding also answers the description of judicial

proceeding "as defined in Sec. 2 (I) Cr. P.C”.
(c) The Executive Magistrate holding an inquest u/s 176 Cr.

P.C. does not appear to be functioning as Court. The
judicial decisions on this point are, however, conflicting.
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INQUEST - SKILL ORIENTED TASK EXERCISE
Q.No. 1 (a) Is there any legal obligation on the part of a person

residing in a village to give information to nearest
Magistrate or to the Officer-in-charge of the nearest
Police Station regarding the following matters?
(i) Sudden or unnatural or suspicious deaths
(ii) Discovery of a corpse or part hereof.
(B) If so, under which section of Law?
Q.No. 2 `x' , a villager intentionally omits to give such

information to the prescribed authority (Magistrate or
Police Officer). Is he liable to be prosecuted? If so, under
which section of law?
Q. No. 3(a) Has such a legal duty to give information been also cast
upon a member of the Panchayat of the village and the
headman of the village?
(b) If so, quote the relevant section of law?
Q.No. 4 The Officer-in-charge of a Police Station has received

information about the suspicious death of a bride one
year after her marriage within his territorial jurisdiction
but has not given intimation thereof to the nearest
Executive Magistrate empowered to hold inquest.
(a) Is he liable to be prosecuted under the law of the land?
(b) If so, under which section of Law.
(c) Can he also be proceeded against in departmental

disciplinary proceeding?
Q.No. 5(a) Is an Executive Magistrate competent to hold inquest

authorised to administer oath to a witness while holding
inquest U/s 176 Cr. P.C.?
(b) If so, quote the relevant sections of law
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Q.No. 6. An Executive Magistrate, not empowered to hold

inquest, held erroneously but in good faith, an inquest in
a particular case.
(a) Should his proceedings be set aside?

Yes/No
(b) Is that defect curable?

Yes/No
(c) Quote the section in support of your answer.
Q.No. 7 What is the object of an inquest?
Q.No. 8 Under which Section of the Evidence Act, an Inquest

Report made by an Executive Magistrate may be used?
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PROCEDURE RELATING TO CRIMINAL TRIALS
I. Trial - what it means
a) It has no fixed or universal meaning.
b) It generally means determination of issues arising in a particular

case.
c) Roughly speaking, a criminal trial is a judicial proceeding, with the

judge or the magistrate on the Bench, the accused in the dock and
the representatives for the prosecution and the defence (if the
accused is represented by a lawyer) present, to determine the guilt
or innocence of the accused.
d) A criminal trial, in which a charge has been framed ends either in

acquittal or in conviction. In the trial of a summons case, although
no formal charge is required to be framed, the ultimate result is
either acquittal or conviction.
II. Trials - different kinds of
Broadly speaking, the Cr.P.C. lays down the procedures for four
kinds of trial, namely,
1) Trial before a court of sessions - Chapter XVIII.
2) Trial of warrant cases by Magistrate - Chapter XIX.
3) Trial of summons cases by Magistrate - Chapter XX.
4) Summary Trials by competent Magistrate - Chapter XXI.
III. Trial before a court of sessions - the broad outlines.
1) Appearance or production of the accused.
2) Opening of the case by the Public Prosecutor.
3) Consideration of the record of the case and other relevant material

and hearing of the prosecution and the accused to find out
whether there is sufficient ground for proceeding against the
accused.
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4) No sufficient ground for proceeding - the accused should be

discharged.
5) Existence of prima facie case against the accused - charge should

be framed.
6) If the offence involved in the charge is not exclusively triable by a

court of sessions, the case should be transferred to the Chief
Judicial Magistrate for trial.
7) If the offence involved in the charge is exclusively triable by a court

of sessions, the charge to be read over and explained to the
accused and his plea to betaken.
8) If the accused pleads guilty, he may be convicted.
9) Otherwise, the Judge will fix a date for production of evidence by

the prosecution.
10) Examination of the prosecution witnesses including their cross-

examination by the defence.
11) When the prosecution evidence is closed, the accused should be

examined u/s 313 Cr.P.C.
12) If the Judge finds that there is no evidence that the accused
committed the offence, he shall acquit the accused (Sec. 232 Cr.
P.C.).
13) If the accused is not acquitted u/s 232 Cr. P.C., he shall be called
upon to enter his defence and to adduce evidence.
14) Recording of the evidence for the defence.
15) Hearing of arguments of both sides.
16) If accused is found not guilty, he shall be acquitted.
17) If found guilty, the accused shall be heard on the point of

sentence.
18) Thereafter, the accused convicted shall be sentenced.
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19) The accused, after he has been found guilty may be dealt with
under the law relating to probation, namely, sec. 360 Cr. P.C. or
Probation of Offenders Act, 1958, provided that the offence is one
falling within the purview of such law.
20) If the Judge proceeds to extend the benefit of probation then the
accused need not be heard on the point of punishment.
IV. Trial of Warrant Cases by Magistrate
Two separate procedures have been prescribed for the trial of

warrant cases by Magistrate : (a) one procedure for cases instituted on
police report and the (b) the other procedure for cases instituted
otherwise than on police report. The difference in procedure is upto the
close of prosecution evidence. Thereafter, the procedures are identical in
both kinds of warrant cases.
V. Outline of the procedure prescribed for trial of warrant cases

by Magistrate in cases instituted on police report :
1) Appearance or production of the accused.
2) Duty of the Magistrate to ensure compliance with the provisions of

Sec. 207 Cr. P.C. viz., supply of copies to the accused.
3) Consideration of the police report and the documents, examination

of the accused (if any) and hearing of arguments of both sides on
the point whether or not charge should be framed.
4) Framing of charge if there is a prima facie case against the accused

and if the Magistrate is competent to try it.
5) Discharge of the accused if the accusation appears to be

groundless.
6) Reading and explaining the charge to the accused and taking his
plea.
7) If the accused pleads guilty, he may be convicted.
8) If the accused pleads not guilty or claims to be tried, the

Magistrate shall fix a date for examination of witnesses for the
prosecution.
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9) Issue of summons to the witness for the prosecution upon the

application of the prosecution.
10) Recording of evidence for the prosecution, including the

examination in-chief of the witnesses by the prosecution and their
cross-examination by the defence.
11) Examination of the accused u/s 313 Cr P.C. after the evidence for
the prosecution has been closed.
12) Calling upon the accused to enter upon his defence and to produce
evidence.
13) The accused may file written statement.
14) Issue of summons to the witnesses for the defence, if applied for by
the accused.
15) Examination-in-chief of the defence witnesses followed by their

cross-examination by the prosecution.
16) Hearing of arguments of both sides, the accused may put in

written arguments also.
17) If the accused is found not guilty, he shall be acquitted
18) If the accused is found guilty, he shall be heard on the question of

sentence.
19) The Magistrate shall then pass the sentence.
20) The Magistrate may, instead of sentencing, the accused then and
there, deal with him u/s 360 Cr.P.C. or under Probation of
Offenders Act, 1958, as the case may be, and in that event, it is
not necessary for him to hear the accused on the point of
sentence.
VI. Main points of distinction in respect of the procedures between the

trials of warrant and summons cases :
WARRANT SUMMONS
1)The procedure is laid down in The procedure is dealt with under
Chapter XIX Cr P.C. Chapter XX Cr. P.C.
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WARRANT SUMMONS
2)If the case involves one or more If the case involves one or more
offences punishable with offences punishable with
imprisonment for life or imprisonment upto two years and
imprisonment for more than two no offence punishable with
years and triable by a Magistrate imprisonment for more than two
then this procedure is to be years, then this procedure should
adopted. be followed.
3)Two separate procedures are There is no such division. The
prescribed, one for cases procedure is the same for cases
instituted on police report and instituted on police report or
the other for cases instituted otherwise.
otherwise than on police report.
4) It is necessary to frame a formal No formal charge is required to be
charge. framed.
5)Consideration of the materials to No such consideration is needed.
find out whether or not there is The particulars of the alleged
a prima facie case to frame a offence are to be stated to the
charge is an important stage. accused.
6)The accused may be discharged if There is no scope for discharge.
the accusation appears to be The accused may, however, be
groundless vide Sec.239 Cr. P.C. acquitted.
and Sec.245 Cr. P.C.
7)In a case instituted otherwise The question of holding inquiry
than on police report, the does not arise.
proceeding, which may lead to
the framing of the charge, should
be called inquiry. In such a case,
the trial begins when the inquiry
ends.
8)Examination of the accused u/s Such examination may not be
313(1)(b) is obligatory. conducted when the court has
dispensed with the personal
attendance of the accused.
9)Evidence of each witness has to A memorandum of the substance of
be taken down in full in the evidence of each witness has to be
manner laid in and Sec 275, made as per Sec. 274 Cr.P.C.
277-280 Cr.P.C.
10)If the accused is found guilty, he There is no such requirement.
has to be heard on the point of
sentence before punishment vide
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Sec. 248 Cr.P.C.
WARRANT SUMMONS
11)No provision for stoppage of In certain cases, a competent
proceedings exists. Judicial Magistrate has power to
stop proceedings vide Sec. 258
Cr.P.C.
12)The accused can be convicted of The accused may be convicted of a
the offence charged or of any different offence triable as a
other offence under summons case, which is admitted
circumstances specified in Sec. or proved, even though it was not
221 or Sec. 221 Cr P.C., but not mentioned in the complaint or in
otherwise. the summons provided the accused
is not prejudiced thereby vide Sec.
255 Cr. P.C.
13)If the complainant is absent, the If the complainant is absent, the
accused may be discharged if no Magistrate may either adjourn the
charge has been framed and if case or acquit the accused or
the offence is compoundable dispense with the attendance of the
and non cognizable vide Sec. complainant vide Sec. 256 Cr.P.C.
249 Cr.P.C..
14)The withdrawal from the The Magistrate may permit the
prosecution may be permitted complainant to withdraw the
u/s 321 Cr P.C. upon the complaint u/s 257 Cr.P.C. and in
application of the APP in charge such event, the accused shall stand
of the case. The result of such acquitted.
withdrawal is acquittal of the
accused, where charge has been
framed and discharge of the
accused, before framing of the
charge.
15)A warrant case can not be tried A summons case may be converted
as summons case. into a warrant case under the
circumstances indicated in Sec.
259 Cr.P.C.
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STAGES OF SECURITY PROCEEDINGS UNDER

CHAPTER VIII CR.P.C. FOR KEEPING THE PEACE
AND FOR GOOD BEHAVIOUR
1. Passing of a preliminary order (Section 111 Cr.P.C.
It should be in writing. It ought to contain:-
(a) Substance of the information received.
(b) The amount of bond to be executed.
(c) The term for which it is to be in force.
(d) The number, character and class of sureties (if any), required.
2. If the OP is present in court, the preliminary order is to be

read over to him (Sec. 112).It may, if desired, by the OP, be
explained to him.
3. If the OP is in custody, issue production warrant addressed to

the officer-in-charge of the Prison.
4. In other cases, issue summons to the OP.A copy of the

preliminary order should accompany the summons. This is the
normal procedure for securing the attendance of the OP.
5. (a)Warrant of arrest may be issued against the OP, when breach

of peace is apprehended which cannot be prevented otherwise
than by immediate arrest of the OP (the proviso to Section
113) copy of the preliminary order should be attached to the
WA.
(b) It may also be legitimate to issue a warrant u/s 87(b) Cr.P.C.

when the OP does not turn up in response to the summons
(vide Gopi Vs. State reported in 1974 Cr. L.J. 1410).
6. Appearance/production of the OP in court.
7. OP ought to be given opportunity of showing cause. The OP

may like to file written objection.
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8. Inquiry - recording of evidence - procedure for trial of

summons case to be followed.
9. Interim Bond may be asked for after the commencement of

the Inquiry and before the completion of the Inquiry. (Section
116(3).
10. Completion of the inquiry within six months.
11. Termination of the proceeding on lapse of six months, unless

the Magistrate, for special reasons, extends the time. Such
extension, if any, has to be made within six months.
12. Extension, if granted by the Magistrate, is liable to be

scrutinized by the Sessions Judge.
13. Order for furnishing security - when it is proved that it is

necessary to take security (Section 117).
14. Not proved, the OP is to be discharged (Section 118).
15. Refusal or rejection of surety by the Magistrate if the surety is

found unfit.
16. Imprisonment in default of security (Section 122).
17. When the bond is for more than one year, the case to be
reported to the Sessions Judge for his orders. In the
meantime, the OP may be detained pending decision of the
Sessions Judge.
18. Breach of bonds -
(a) A bond for good behaviour - when the OP, after execution of the
bond, but during the term of the bond, commits or attempts to
commit or abets in the commission of an offence punishable with
imprisonment.
(b) A bond for keeping peace.
A bond for keeping the peace is broken when the OP does some
act, during the term of the bond, which is likely in its consequence to
provoke a breach of the peace.
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19. Consequences of breach of bond
(a)It is the forfeiture of the bond u/s 446 Cr.P.C. The person bound by
the bond shall be called upon to pay the penalty specified in the bond or
to show why it should not be paid. If cause shown is not considered
sufficient and the penalty is not paid, it may be recovered by issuing a
distress warrant u/s 421 Cr.P.C. Where the penalty is not paid and can
not be recovered u/s 421 Cr.P.C., the surety may be imprisoned in Civil
Jail for a period not exceeding six months.
(b)Without prejudice to the forfeiture indicated in clause (a) above, in

case of breach of bond for keeping peace without surety, the person
bound by the bond may be arrested and detained in prison until the
expiry of the period of the
bond.
Such detention can not, however, be ordered in case of bond for

keeping peace with surety or bond for good behaviour with or without
surety.
20. Power to release persons imprisoned for failure to give

security.
District Magistrate, and Chief Judicial Magistrate may release, the

former when imprisonment has been ordered by an Executive Magistrate
and the latter in any other case.
21. Power to reduce the amount of security, number of sureties or

the time for which security has been taken when the persons
have been imprisoned for failure to give security is vested in
the following authorities:-
(a) High Court.
(b) Court of Sessions.
(c)District Magistrate - in case of order passed by an Executive

Magistrate.
(d)Chief Judicial Magistrate in case of orders of passed by

Judicial Magistrates.
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Public Nuisances - Powers of the Executive Magistrates

to deal with them under the Code
of Criminal Procedure.
1. Public nuisance - what it is?
(a) The expression "Public Nuisance" consists of two words, namely (i)
Nuisance and (ii) Public.
(b) The term "Nuisance" can not be exactly and precisely defined.
(c) The dictionary meaning of "Nuisance" is as follows:
"It means anything injurious or obnoxious to the community or the

individual as member of it, for which some legal remedy may be
found."
(d) "Nuisance" may be classified under two heads, namely, (i) Public
Nuisance and (ii) Private Nuisance.
(e) Public Nuisance affects the public or any class of it, while Private
Nuisance affects particular individual or individuals as
distinguished from the Public at large.
(f) "Nuisance is the wrong done to a man by unlawfully disturbing

him in the enjoyment of his property or in exercise of a common
right. (Pollock quoted with approval in Annapurna Food Products
vs. Commissioner, Gauhati Municipal Corporation (1985) 2
Gauhati LR 200).
(g) "Public Nuisance" is essentially a crime. It has been defined in Sec.

268 IPC. It is either an act or an illegal omission:
(i) which causes any common injury or danger or annoyance to (a)

Public or b) to the people in general who dwell or occupy property
in vicinity.
(ii) which necessarily cause injury, obstruction, danger or annoyance

to persons who may have occasion to use any public right.
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2. Remedies in case of Public Nuisance
(a) The person committing public nuisance may be prosecuted and

punished under the relevant provisions of the Indian Penal Code.
(Chapter XIV IPC).
(b) A suit may be instituted against the wrongdoer under Section 91 of

the Civil Procedure Code, for declaration, injunction and other
reliefs.
(c) A private party, who has suffered special damage by reason of the
nuisance, may also file a suit for damages. A representative suit is
also maintainable under order 1, Rule 8 CPC, at the instance of a
number of persons suffering special damage.
(d) Redressal of Public Nuisances in exercise of the preventive

jurisdiction of the competent Executive Magistrates under Sections
133 to 143 of the Code of Criminal Procedure.
Note: The remedy referred to in clause (d} of the paragraph 2 is the

subject matter of this paper.
(e)Actions under the Special or Local Law, such as Municipal Act, Water
(Prevention and Control of Pollution) Act, 1974.
3. Magistrates competent to deal with Public Nuisance under the

Cr.PC.
(a) District Magistrate, or
(b) a Sub-Divisional Magistrate, or
(c) any other Executive Magistrate specially empowered by the State

Government in this behalf.
4. Scheme of Chapter X Cr. P.C.
In order to appreciate the scope of the powers of the competent Executive

Magistrates to deal with Public Nuisances, it is necessary to understand
the scheme envisaged in the Chapter X of the Cr. PC.
The theme of Chapter X Cr.P.C. is "Maintenance of Public Order and

Tranquillity".
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Public Order and Tranquillity may be disturbed due to a variety of

factors. An Unlawful Assembly may turn out to be violent. A Public
Nuisance may cause disturbance of Public Order. A dispute relating to
immovable property may lead to breach of peace.
Hence, the provisions of Chapter X are intended to confer powers upon

the Executive Authorities to enable them to maintain Public Order and
Tranquillity.
An indication is given below:
Chater X
Maintenance of Public Order and Tranquillity
(A) Unlawful Assembly

Sections 129 to 132 Cr.P.C
= 4 Sections.
(B) Public Nuisances

Section 133 to 143
= 11 Sections.
(C) Urgent cases of nuisance or apprehended danger

Section 144 Cr.P.C.
= 1 Section.
(D) Disputes as to immovable property

Sec. 145 to 148 Cr.P.C.
= 4 Sections.
Number of Sections:
A=4
B = 11
C
D=4
20 Sections
Note:
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(a) Generally speaking Sec. 133 to. Section 143 Cr.P.C provide a
speedy and summary remedy in case of urgency involving public
interest.
(b) Sec. 133 Cr.P.C does not, however, always require danger to
general public. For Sec. 133 (i) (d) it is enough if an individual is
wronged.
5. Procedure- a broad outline
(a) Competent Executive Magistrate vide Para (3).
(b) Police report or other information laid before him.
(c) Application of mind by the Magistrate.
(d) He may take evidence, if he considers it necessary at that stage.
(e) He should prima facie satisfy himself as to the existence of any of

the six situations as laid down in Sec. 133(1) Cr.P.C and as to the
need for taking any of the actions contemplated therein, such as
removal of obstruction, fencing of a tank, destruction of a
dangerous animal etc. etc.
(f) If he is so satisfied, he makes a conditional order u/s 133 (1)

Cr.P.C. calling upon the alleged wrongdoer to perform the act
directed by a specified date or if he objects to appear before the
Magistrate and to show cause why the order should not be made
absolute vide form No. 20, Sch. II, Cr.P.C.
(g) Personal Service of the conditional order upon the opposite party.
(h) If such service not possible, then lt may be notified by

Proclamation.
(i) If the opposite party neither performs the act directed nor appears
and shows cause, the conditional order shall be made absolute u/s
136 Cr.P.C.
(j) If the opposite party appears, the Magistrate should question him
as to whether he denies the existence of any public right. This is
necessary only when a public right is involved, say, for instance, in
cases covered by 133 (i) (a).
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(k) If he denies, an enquiry has to be held u/s 137 Cr.P.C.
(l) At such inquiry, if reliable evidence is produced by the opposite

party in support of the denial, the Magistrate shall stay the
proceeding.
(m) In such event, the question as to the existence or non-existence of

Public Right, should be decided by a Civil Court of competent
jurisdiction.
(n) If the opposite party appears and shows cause but does not deny
the existence of public right or having denied, fails to produce
reliable evidence in support of such denial, the Magistrate shall
proceed to hold an inquiry u/s 138 Cr.P.C.
(o) If the case does not involve any question of public right, Section
137 Cr.P.C is not attracted. If the opposite party shows cause, the
Magistrate shall, in such a case. proceed to hold an inquiry u/s
138 Cr.P.C.
(p) At the Inquiry u/s 138 Cr.P.C, the Magistrate shall take evidence
of both sides, if tendered by them, as if it is a summons case.
(q) The Magistrate has powers:
(i) to direct local investigation
(ii) to examine an expert
for the purposes of inquiry u/s 137 or u/s 138 Cr.P.C.
(r) At the conclusion of the inquiry u/s 138CrPC, if the Magistrate is

satisfied that the conditional order is reasonable and proper, he
shall confirm it u/s 138 Cr.P.C. He may, if he thinks necessary,
modify the conditional order and thereafter make it absolute.
(s) If the Magistrate is not so satisfied, he shall drop the proceeding.
(t) The Magistrate, after having confirmed the conditional order, either
in original or modified form shall issue notice to the opposite party
asking him to perform the act directed on pain of penalty u/s 188
IPC. vide Form No.2 1, Sch.II Cr.P.C.
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(u) If the act is not performed by the date fixed, the Magistrate shall
get it done and recover the costs from the person bound by the
order.(Enforcement of the order and recovery of costs of execution.)
(v) Such recovery may be made either by sale, distress and sale and
attachment and sale, as the case may be.
6. Power to issue injunction (Sec. 142 Cr.P.C)
After the conditional order and during the pendency of the enquiry,
when there is imminent danger or injury of serious kind to the public.
Note: Form to be used is prescribed by Form No.22. Sch.II Cr.P.C.
7. Power to Prohibit repetition or continuance of public nuisance
This is intended to prevent repetition or continuance of

public nuisance by the party against whom an order u/s 133
Cr.P.C. has already been passed.
Punishment u/s Sec. 291 IPC
Form23, Sch.II Cr.P.C.
Note: This section does not apply to original Proceedings.
8. Enquiries that may be conducted by the competent Executive

Magistrates are of two kinds, namely:
(i) One u/s 137 Cr.P.C on the point of existence of Public Right if it is
denied. It is for the party denying such right to produce reliable
evidence in support of denial.
(ii) The other u/s 138 Cr.P.C to find out whether the conditional order
already passed u/s 133 should be made absolute. The conditional
order, if found reasonable and proper ought to be made absolute
either in the original form or after such modification as may be
warranted by the results of the inquiry.
9. Powers exercised by the competent Executive Magistrates u/s 133

to 141 Cr.P.C are judicial and hence, the Govt. cannot interfere.
Revision may lie to the High Court, or the Court of Sessions
against orders passed thereunder, unless they are Interlocutory in
nature within the meaning of Sec. 397 (2) Cr.P.C.
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10. Examples from decided case
I. A paper mill was engaged in the manufacture of papers, based on

100 per cent waste papers and addition of chemicals. Untreated
effluents were discharged from the Mill, which were found to be
injurious to the life of human beings and cattle.
A petition u/s 133 Cr.P.C was filed before the SDM, who passed a
conditional order and later on, made it absolute u/s 136CrPC
authorising the Revenue Officer to close the carrying of the trade of
production in the Paper Mill.
That order u/s 136 Cr.PC was challenged before the High Court.
The decisions arrived at by the High Court may be outlined below:
(a) Water Prevention and Control of Pollutions Act, 1974, has not
taken away the powers of the SDM u/s 133 Cr.PC.
(b) The SDM had power to pass orders u/s 136 Cr.PC for closure of
the Mill, which was causing pollution, vide 1987 CrLJ 2071.
II. 'X' and 'C' were running a workshop adjacent to the house of 'A'. It
was alleged by 'A' in a petition u/s 133 Cr.PC that repairs of auto-
rickshaws were carried on and welding operations were conducted
for the purpose, resulting in air and noise pollution. It was held
that in such circumstances. which among other things involved
discharge of carbon monoxide, the petition u/s 133 Cr.PC was
maintainable (vide 1989 CrLJ 499).
III. It was a residential colony. Some people carried on fodder business

on open pieces of land comprised in that colony. Fodder used
to be brought daily during night and unloaded near residential
houses in the morning. The fodder was cut during the day by
electric-operated machines. It created intolerable noise and
substantially disturbed the physical comfort of the residents.
A petition u/s 133 Cr.PC was filed before the Magistrate. He

passed a conditional order and thereafter, after holding due
enquiry, made the order absolute us 138 Cr.PC. The opposite
parties were directed by the Magistrate to desist from cutting and
selling cut fodder at the places in question and to remove the
fodder within ten days.
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That order of the Magistrate was challenged by the opposite parties

but it was upheld by the High Court vide 1988 CrLJ 614.
IV. 'A' erected a platform on a public road, which caused obstruction

to the people using that road.
It is a public nuisance even though no practical

inconvenience results from such obstruction.
It is a fit case where Section 133 may be invoked.
V. There was a bone-mill. Large stock of bones remained uncovered in

open air for a long time. The bones got rotten and started emitting
a smell noxious to the neighbouring people.
It constituted a public nuisance, for which remedy us 133CrPC is

available.
VI. There was a factory in a populated locality. It produced

considerable noises which were injurious to the physical comfort of
the community.
Sec. 133 Cr.PC was applicable, the noise being public nuisance.
VII. There were open drains in a municipal area, which contained

heaps of dirt and also human excretions, giving rise to a foul smell.
The municipality was liable to be proceeded against u/s 133

Cr.PC and might be called upon to take affirmative action on a
time-bound basis for abatement of such public nuisance (Ratlam
Municipality vs. Vardicharan AiR 1980 SC 1622).
VIII. A building was in a very dangerous condition and likely to fall

down.
The owner-landlord of the building filed a petition before the

S.D.M. Under Section 133 Cr.P.C. A conditional order was passed,
calling upon the tenant-occupants of the building to pull down the
entire building.
One of the occupant appeared and objected on the ground that the
owner- landlord was trying to evict him and that it could be done
only in accordance with the prevalent Rent Control Law.
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The contention was rejected by the High Court. It was held that the
jurisdiction of the Magistrate u/s 133 Cr. P.C. was not ousted by
the Rent Control Act (vide 1988 Cr. L.J 66).
IX. A report was laid before the Executive Magistrate, Bangalore by the
Police that two coconut trees on a public road were causing
unlawful obstruction and constituted a public nuisance.
The Magistrate directed the opposite party to cut off and remove
the standing coconut trees within seven days failing which to
suffer penalty u/s 188 I.P.C.
This order of the Magistrate was challenged before the High Court.
The High Court set aside the order, holding inter alia, that the
learned Magistrate made a sort of hybrid order, combining the
conditional order u/s 133 with the Final Order as contemplated to be
made u/s 136 Cr. P.C. He ought to have made a conditional order in the
first instance. It was only when such person did not perform such act or
failed to appear and show cause, the order shall be made absolute. A
person causing obstruction must be given an opportunity of being heard
before he is made liable to the penalty prescribed by Section 188 I.P.C.
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URGENT CASES OF NUISANCE OR APPREHENDED DANGER

- SECTION 144 Cr. P.C.
Section 144 Cr. P.C. confers powers upon certain Executive

Magistrates to issue temporary orders in urgent cases of nuisance or
apprehended danger, when immediate prevention or speedy remedy is
desirable.
2. Which Magistrates are competent to act u/s 144 Cr.P.C.?
(a) District Magistrate.
(b) Sub-Divisional Magistrate.
(c) Any other Executive Magistrate specially empowered by the

State Government in this behalf.
3. Commissioner of Police in Metropolitan areas may issue orders

u/s 144 Cr. P.C.
Sec. 20(5) Cr. P.C. lays down as follows :
Nothing in this Section shall preclude the State Government from

conferring on the Commissioner of Police any or all of the powers of an
Executive Magistrate in relation to a Metropolitan area.
Hence, Commissioner of Police may be vested with the powers of

an Executive Magistrate.
4. Order u/s 144 Cr. P.C. - the essentials
(i) Order must be in writing.
(ii) It must be definite and specific
(iii) It must set out the material facts.
(iv) It must show application of mind and satisfaction as to the

existence of sufficient ground.
(v) Emergency - the order should indicate that an emergent

situation has arisen.
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5. The object of an order u/s 144 Cr. P.C. is to prevent any of the
following
(a) Obstructions annoyance or injury to any person lawfully

employed.
(b) Danger to Human life, health or safety.
(c) Disturbance of public tranquillity.
(d) Riot or affray.
6. Can an order u/s 144 Cr. P.C. be passed ex-parte?
Yes, either in cases of emergency or in cases where circumstances

do not permit service of timely notice upon the person against whom the
order is directed.
7. Nature of the order u/s 144 Cr. P.C.
(a) Generally, it is prohibitory
(b) In appropriate cases, it may be mandatory, say, for instance,

Magistrate may enjoin the opposite party to direct removal of
an obstruction when it is needed to prevent a breach of
peace. (Madhu Limaye's case- Supreme Court).
8. A prohibitory order u/s 144 Cr. P.C. must specify:
(i) the thing which is prohibited.
(ii) the persons who are prohibited.
(iii) the place covered by the order.
(iv) period of time.
9. A few examples of the kinds of orders that may be passed by a

competent Executive Magistrates u/s 144 Cr. P.C.
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(a) To prohibit an assembly, a meeting, or procession for

prevention of breach of peace, but not for interfering with the
lawful exercise of legal rights.
(b) To prohibit carrying of arms or weapons.
(c) To prohibit a person from entering into a particular area.
(d) To prohibit using of loudspeakers.
(e) To prohibit people from coming out of their houses on the

public road/street/lane (curfew).
(f) To prohibit raising of provocative slogans which are likely to

cause breach of peace.
(This list is illustrative and not exhaustive)
10. Violation of an order u/s 144 Cr. P.C.
It is punishable u/s 188 IPC. It is a cognizable offence.
11. Order u/s 144 Cr. P.C. - Character of
Is it-
(a) Judicial?
. No
(b) Quasi-Judicial?
. No
(c) Executive?
. Yes
Gulam Abbas
vs
State of U.P.
AIR 1981 SC 2198
12. Curfew- what it is
(a) COUVRE F E U (French)
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To cover the fire.
(c) Dictionary Meaning
the ringing of a bell as a signal to put out all fires and lights.
to prevent nightly gathering of the people of England.
(c) Legal notion
An order u/s 144 Cr. P.C. promulgated by a competent Executive

Magistrate or Commissioner of Police obliging people to be indoor.
13. Remedies against an order u/s 144 Cr. P.C.
(i) Rescission or alteration
(a) u/s 144(5) by the Magistrate who passed the order or

by his successor-in-office or by a Magistrate to whom
he is subordinate.
(b) u/s 144(6) by the State Government.
(ii) Revision before the High Court or Court of Sessions.
(iii) Writ petition before the High Court or the Supreme

Court.
(iv) A Civil suit.
Note : The term "Curfew" does not occur in Sec. 144 Cr. P.C. or
anywhere in Cr. P.C.
14. Law and Order - D.M.
THE MAINTENCE OF LAW AND ORDER IS A FUNCTION OF THE

DISTRICT MAGISTRATE.
1988 CRI L.J. 189

AIR 1988 SUPREME COURT 93
ISHTIAQ HUSSAIN FAROOQUI PETITIONER
Vs.
STATE OF U.P. AND OTHERS, RESPONDENTS
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Recent Rulings bearing on Section 144 Cr. P.C.

Section 144
Order - not a judicial one
15. Order passed u/s 144 Cr. P.C. is not judicial. Such order is
justiciable in writ jurisdiction.
Gulam Abbas vs. State

AIR 1981 SC 2198:1981 Cr. L.J. 1835.
16. Promulgation of an order u/s 144 Cr. P.C. - an executive

function.
It is an executive function. An order under Section 144 will have

to be regarded as an executive order passed in performance of an
executive function where no lis is adjudicated upon but merely an
order for preserving public peace is made.
(i) 1990 Cr. L.J. 422 Allahabad

(ii) AIR 1981 SC. 2198
Case No. (ii) was relied upon case in (i)
Note :`Lis' means a controversy or dispute or a suit or action at law

(Black's Dictionary)
17. Order u/s 144 Cr. P.C.- its object
Section 144 is intended to be availed of for preventing disorders,

disturbances and annoyances and with a view to secure the public
weal. The restraints envisaged in S. 144 are of a temporary nature
and can be imposed in an emergency. Thus, action under S. 144
is anticipatory. Anticipatory restrictions are imposed upon
particular kind of activities in an emergency. Preservation of the
public peace and tranquility is the primary function of the
Government and the aforesaid power is conferred on the executive
magistracy enabling it to perform that function effectively during
the emergent situations.
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1990 Cr. L.J. 422 Allahabd.

AIR 1981 SC 2198
1981 Cr. L.J. 1835, referred to and followed.
18. Basis of an order u/s 144 Cr.P.C.
"The entire basis of action under Section 144 is provided by

urgency of the situation and the power thereunder is intended to
be availed of for preventing disorders, obstructions and annoyance
with a view to secure public weal by maintaining public peace and
tranquility. Preservation of the public peace and tranquility is the
primary function of the Government and the aforesaid power is
conferred on the executive magistracy enabling it to perform that
function effectively during emergent situations and as such it may
become necessary for the executive magistrate to override
temporarily private rights and in a given situation the power must
extend to restraining individuals from doing acts perfectly lawful in
themselves, for, it is obvious that when there is a conflict between
the public interest and private rights the former must prevail".
(i) AIR 1981 SC 2198= 1981 Cr. L.J. 1835

(ii) referred in 1990 Cr. L.J. at page 422, Allahabad
19. Limit of Exercise of power u/s 144 Cr. P.C. and passing ex
parte order.
There was no riots on the date of passing of the order. It is

not permissible to ignore the requirement of service of show-cause
notice before passing adverse order against a citizen by taking
resort to 144(2) Cr. P.C. and passing ex parte order.
Powers under S. 144 of the code are to be used in urgent

causes of nuisance or apprehended danger and this being an
inroad upon the citizens, the powers must be exercised only to the
extent necessary. The District Magistrate, even if right, in
exercising powers, should have limited the area to the three towns
in which according to orders the disturbances had taken place. It
is well settled that larger the power greater the restraint demanded
in exercise thereof.
1989 Cr. L.J. 1364 Bombay.
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20. Order under 144 Cr. P.C. - Valid for two months only -
temporary in nature
An order under S. 144 which is unlimited in duration and

permanent in effect violates sub-section (4) thereof and therefore,
beyond the jurisdiction of the magistrate. Sub-section (4) limits
the validity or orders made under Section 144 to two months
except where the Government acts under the Proviso.
1984 Cr. L.J. 971 Kerala

See also 1973 Cr. L.J. 143 Patna.
21. Formation of an opinion by the Magistrate u/s 144 Cr. P.C.
U/s 144(1) the Magistrate himself has to form an opinion

that there was sufficient ground for proceeding u/s 144 and
immediate prevention or speedy remedy was desirable. The
Magistrate should set out the material facts of the case.
Satisfaction of the Magistrate about apprehension of breach of
peace in an important factor u/s 144 Cr. P.C.
Quoted from AIR 1961 S.C. 884; 1961(2) cr. L.J. (SC)
Vide- 1989 Cr. L.J. 1651 Calcutta.
22. Nature of opportunity to show cause u/s 144(1) and 144(4)
Section 144(7) requires that when an application under S. 144 (5)

or (6) is made to rescind or alter the order made, an early
opportunity should be afforded to the applicant of appearing in
person or by a pleader and showing cause against the order. What
would constitute an opportunity to show cause must differ from
case to case. It would not necessarily include elaborate recording
of evidence in each and every case. It has to be remembered that
S. 144 deals with urgent cases of nuisance or apprehended danger
and in this context it is only proper to hold that opportunity of
showing cause thereunder has of necessity to be of a summary
nature. It would be sufficient if the aggrieved person is reasonably
allowed to support his say and his submissions are duly
considered and a reasoned order u/s 144(7) is passed in case the
application of the aggrieved person is rejected. S. 144(2) is passed
in case the order under S. 144(1) in certain circumstances but it is
subject to subsequent hearing to the aggrieved person. This
implies that an order under S. 144(1) should not be passed
without affording an opportunity to the person against whom it is
purported to be made.
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1987 Cr. L.J. 458 M.P.
23. Order u/s 144 Cr. P.C. must be in aid of legal rights.
The exercise of the power u/s 144 Cr. P.C. must be in aid of
legal rights and against those who interfere with the lawful exercise
thereof.
1985 Cr. L.J. 957 Calcutta.

1981 Cr. L.J. 1835 SC relied upon.
24. Regulation and not prohibition of customary rights.
The object of Sec. 144 Cr. P.C. is to preserve public peace

and tranquillity. Where a community is found entitled to certain
customary rights, attempt should be made to regulate those rights
and not to prohibit them altogether.
AIR 1981 SC 2198

AIR 1971 SC 2486
25. Power of Magistrate u/s 144-Emergency
It is possible to act absolutely and even ex parte. The

emergency must be sudden and the consequences sufficiently
grave. There is no general proposition that an order u/s 144, Cr.
P.C. can not be passed without taking evidence.
AIR 1971 1971 SC 2486

1971 Cr. L.J. 1720
Madhu Limaye vs. S.D.M. Monghyr.
26. Length and validity of order u/s 144 Cr.P.C.
The order u/s 144 Cr. P.C. is only temporary which can not
last beyond two months from the making thereof. Question of title
can not be decided at all.
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AIR 1978 SC 422.
27.Order u/s 144 Cr. P.C. - temporary in nature Repetitive orders

amount to abuse of power.
The parliament never intended the life of an order under S.

144 to remain in force beyond two months when made by a
Magistrate. The scheme of that section does not contemplate
repetitive orders and in case the situation so warrants steps have
to be taken under other provisions of the law such as S. 107 or S.
145 of the Code when individual disputes are raised. If repetitive
orders are made it would clearly amount to abuse of the power
conferred by S. 144. The nature of the order under S. 144 is not
intended to be either permanent or semi-permanent in character.
1983 Cr. L.J. 1872 S.C.
28.The order must disclose reasons and relevant facts
Prohibitory orders - Ex parte orders- Absence of reasons

warranting passing of orders without service or notice to parties-
Order containing mere statement of emergency situation and no
relevant facts- Vitiated.
1991 Cr. L.J. 2150, Madras.
29. Nature of order u/s 144- Mandatory or prohibitory.
S. 144 provides for the making an order which is either

prohibitory or mandatory.
1971 Cr. L.J. 1720 SC

See also 1978 Cr. L.J. 496
30. What will justify the exercise of power u/s 144?
The gist of action is the urgency of the situation, and without

it the exercise of power will have no justification.
1983 Cr. LJ 1872, Calcutta.
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31. Magistrate should first ascertain who is wrong.
In the case of a dispute as to the possession of any property

coming under this section, the proper course for the magistrate is
to ascertain which party is in the wrong and is interfering with the
exercise of the legal right of the other party. Thereafter, the
magistrate should direct that party to abstain from a certain act or
to take certain order with respect to the property in his possession
if the magistrate considers that such direction is likely to prevent
or tends to prevent danger to human life etc. as spelled out in S.
144.
1998 C. L.J. Gauhati
32. Is shoot-at-sight order valid for mere breach of curfew?
The shoot-at-sight order threatening the curfew breakers is

void. Mere breach of the curfew, order for shooting at is ultra
vires the executive powers of the State government. The order
also violates Articles 20 and 21 of the Constitution of India.
1975 Cr. L.J. 661 Gujarat.
33. Reasons to be recorded.
The order u/s 144 should bot be bald but should contain
atleast some reasons to show that the magistrate has applied his
mind and was satisfied about the existence of factors necessary for
action u/s 144.
1979 Cr. L.J. 1147 A.P.

Vide also 1981 Cr. L.J. 60 Sikkim.
34. The authority of Magistates - not absolute
The authority of magistrates- not absolute not supreme but

subject to supervision and revision by the higher courts and
therefore, the magistrates in order to act legally and with
propriety, must indicate with reasonable fullness the materials on
which they conclude that there was some emergency justifying
their actions, so that the higher courts may check and brake them
and put them back on the rails when they go off.
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1981 Cr. L.J. 60 Sikkim.
35. S. 144 Cr. P.C. vis-à-vis Art. 19 (2) to (6) of the Constitution
The provision of S. 144 must be construed in the light of the

provisions of Article 19 (2) to (6)of the Constitution. When so
construed, the conclusion could be inevitable that the obstruction,
annoyance or injury or any other danger or disturbance sought to
be prevented "must" as indicated by the Supreme Court (in Madhu
Limaye) "assume sufficiently grave proportions to bring the matter
within the interests of public order" or general public or any other
matter specified in Article 19 (2) to (6) of the Constitution.
1981 Cr. L.J. 60 Sikkim.
36. Order u/s 144 Cr. P.C. can not take the character of a
permanent injunction
An order u/s 144 must be temporary and revocable in

nature it should not take the character of a perpetual injunction.
1973 Cr. L.J. 143 Patna.
37. Limitation - How to be calculated?
It is crystal clear from S 144(1) to (4) that the period of 60

days has to be calculated from the date on which the prohibitory
order has been passed at the time of initiation of proceeding.
1983 Cr. L.J. 1215 patna.
38. Sec. 144(5) & (7) Revisional jurisdiction not taken away?
U/s 144 (5) & (7) any magistrate may rescind or alter his
own order or an order passed by his predecessor or any magistrate
subordinate to him. This is a salutory provision by virtue of which
a person aggrieved can either approach the same magistrate or a
magistrate to whom the magistrate passing the order is
subordinate. But this does not mean that by reason of this
provision the revisional jurisdiction of the High Court or Court of
Session is taken away.
1972 Cr. L.J. 1126 A.P.

See also 1981 Cr. LJ 60 Sikkim
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39. When can the High Court set aside the orders?
When the order u/s 144 purports to affect the future rights
of the parties, the High Court may, in appropriate case, set aside
the order even though its time expired or it had spent its force.
AIR 1940 Patna 559

See also 1981 Cr. LJ 60 Sikkim.
40. Public Meeting- Total prohibition by Police Authority invalid.
When the police authorities refused the permission to B.J.P.

a political party, for holding a public meeting on the ground of
likelihood of riots and communal tension particularly after the
incidence of demolition of structure at Ayodhya in Dec. 1992, and
also on ground of existence of prohibitory orders under S. 144, Cr.
P.C., the refusal of permission was invalid so far as it totally
prohibits holding of public meeting. The Commissioner of Police
instead of totally prohibiting the holding of meeting may impose
necessary restrictions and take such preventive measures as he
may consider fit and proper while allowing such meeting to be
held.
1993 Cr. L.J. 2096 Calcutta.
41. An order u/s 144 - Need for following natural Justice- Hearing
to be given except in case of emergency.
Though it is true that the anticipatory actin under Section

144, Cr. P.C. can be taken by a Magistrate in an emergency where
danger to public order is genuinely apprehended. But it can not be
said that Section 144 can be used for suppression of lawful activity
or for doing certain acts which are against the law and the rules
made thereunder. The satisfaction of the Magistrate as to the
necessity of promulgating an order under Section 144, Cr. P.C. is
not made entirely subjective by the section where challenge to this
order is made, the Magistrate has to give an opportunity to the
person concerned of appearing before him and for showing cause
against the order.
1193 Cr. L.J. 2883 M.P. (D.B.)
42. Arrest under S. 144- No overt act necessary.
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No overt act is necessary to justify the arrest for breach of

the order u/s 144 Cr. P.C. All that is required is a reasonable
apprehension of breach of peace and the necessity to prevent it.
(1970) 3 SCC 218
43. D.M. to maintain public order u/s 144
(a) It is for the D.M. to exercise his powers in consonance with

the provisions of 144 Cr P.C. for the purpose of maintaining
public order which would be in the larger interest of the
Society.
(b) Fundamental Rights and Sec. 144 Cr. P.C.
The exercise of Fundamental Rights Under Articles 25

and 26 of the Constitution is not an absolute right but must
yield or give way to maintenance of public order.
AIR 1988 SC 93 = 1988 Cr. L.J. 189.
44. Limit of Jurisdiction u/s 144.
A Magistrate can not order a party to be dispossessed and other

party to be put in possession in proceedings u/s 144.
1988 Cr. L.I. NOC 6 (Part.).
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PROBLEM SOLVING EXERCISES
P, a Police Officer attached to the local Police Station, called at the

residence of M. the SDM of the area on 1.6.95. at about 9. A.M. and
reported that A, an accused arrested by the Police on charges of burglary
and theft, died of heart failure at about 7 A.M. on that very day while he
was detained in the Thana lock-up.
The SDM at once rang up the SDPO who happened to be an IPS

Officer and requested him to hold inquest on the dead body to report to
him the results thereof.
The SDM took that action in the belief that it was for the Superior
Police Officer to Police the sub-ordinate Police and to monitor their
activities.
Points to be considered and decided :-
(1) Which Police Officers are competent to hold inquests?
(2) Is an SDPO authorised to hold inquest?
(3) Was the SDM justified in requesting the SDPO to hold inquest
in that case?
(4) Was it open to the SDM to direct the Police not to hold any
inquest in that particular case?
(5) Can there be a Magisterial inquest instead of or in addition to

the Police inquest?
(6) Was it a case where inquest by an Executive Magistrate was

compulsory?
(7) If so, what actions the SDM should have taken on receipt of
that information?
(8) Which Magistrates are competent, to hold inquests?
(9) Does an SDM have power to direct a competent Executive

Magistrate functioning in his Sub-Division to hold inquest?
(10) Why the Law has set up two separate mechanisms

(Executive Magistracy and Police Agency) for holding of inquest
in respect of unnatural and suspicious deaths?
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(11) What powers the Executive Magistrates are competent to

exercise while holding inquests, which are not available to the
O.C. or a S.P.?
(12) What documents and records you would like to consult in

case of death in Police Custody?
(13) Who are the persons whom you should examine in course of
holding inquests into death in Police Custody?
(14) What are the circumstances where a magisterial inquest is a

must?
(15) What is the evidentiary value of an inquest Report?
(16) When an Executive Magistrate holds inquest- does he

function as Court?
CONDITINAL ORDER U/S 133 Cr. P.C. AND THE NOTICE TO BE

ISSUED TO THE OPPOSITE PARTY IN PURSUANCE OF THAT ORDER
Order-writing Exercise
You are the Sub-Divisional Magistrate, Mussoorie. (Assume

Mussoorie to be a sub-division). P, the proprietor of Laxmi Bhandar, a
confectionary shop at the Library point, files a petition before you,
alleging that B, another shop-keeper, has erected a platform on the
public road as described in the schedule to the petition which is causing
unlawful obstruction to the members of the public using that road
including his customers. The petitioner examines himself and produces
two other witnesses in support of his petition.
Draw up a Conditional Order Under Section 133 Cr. P.C., on the

reverse.
Note : You may like to consult the provisions of Sec. 133 Cr. P.C.
and also read Form No. 20 contained in the second schedule
to the Cr. P.C.
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Model Order
In the Court of SDM, Mussoorie

Order No. 1 dated 3rd of June, 1996.
P, who has described himself as the proprietor of Laxmi Bhandar,

files a petition. It is purported to be one u/s 133 Cr. P.C. He is present
with two witnesses.
Considered the petition. The petitioner examines himself as PW1.

He reiterates on oath what has been stated in his petition. He produces
two witness in support of his petition. Their (PW2 and PW3) initial
depositions are also recorded. They lend corroboration to the testimony
of the Petitioner (PW1).
Considered the material on record. It appears therefrom that the

opposite party has erected a platform on the public road in front of the
shop of P. It further appears that the platform so raised by the OP still
exists and is causing unlawful obstruction to the members of public
using the road.
I am, therefore, led to believe that it is an unlawful obstruction

within the meaning of clause (a) of sub-section (1) of Section 133 Cr. P.C.
and that the remedy as envisaged in clause (I) of Section 133(1) Cr. P.C.
for removal of such obstruction is called for. Hence, I think that it is a fit
case where a proceeding u/s 133 Cr. P.C., should be drawn up against
the OP, by passing a Conditional Order.
Let the Opposite Party be called upon to remove the platform from
the public road as described in the schedule to the petition by the 14 th
June, 1996, or to appear before this Court at 11 A.M. on 14 th June, 1996
and to show cause as to why this order should not be enforced.
The petitioner to put in requisites at once for the service of the

notice upon the OP.
Sd/- A.K. Roy SDM
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ORDER FOR REMOVAL OF NUISANCE
To
Shri Prakash Singh,
Proprietor,
Prakash & Co.,
Mall Road,
Library Point,
Mussoorie.
Whereas it has been made to appear to me that you have caused

an obstruction to persons using the public roadway which is known as
Mall Road and located at Library Point, Mussoorie by raising a platform
on that road in the front of "Laxmi Bhandar" a confectionery shop owned
by the Petitioner and that such obstruction still exists.
I do hereby direct and require you to remove the platform from the
public road as described in the schedule below by the 14 th of June, 1996,
or to appear before this Court at 11 A.M. on 14th of June, 1996 and to
show cause as to why the order should not be enforced.
Schedule
Description of the obstruction:
Wooden Platform Height: 3 ft., Length: 5 ft., and Breadth: 2 ft.

raised on the Mall Road at the Libray Point, in front of "Laxmi Bhandar"
a confectionery shop owned by Shri Laxmi Yadav (the petitioner).
Dated : This day of 3rd June, 1996
Sd/- A.K. Ray

Seal of the CSDM
Seal of the
Court
3.6.96
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ORDER U/S 144 Cr. P.C. - A SPECIEMENT FORM
Ref. Sec. 144 Cr. P.C., read with the contents of Form No. 24 included
in the second schedule to the Code of Criminal Procedure.
Background
Hariharpur and Mohammadpur are two neighbouring villages

located within the local limits of Durgapur Police Station in the district of
Burdwan (West Bengal). Harpharpur is exclusively inhabited by the
Hindus whereas the entire population of Mohammadpur is composed of
the members of the Muslim community. The village Mohammadpur is to
the east of village Hariharpur. There is a plot of land between the two
villages, which has been used as a grazing ground from time
immemorial. It was generally treated as the common property where the
residents of both the aforesaid villages had right to graze their cattle.
At the western end of the village Mahammadpur, there is a Mosque

where the people of Mohammadpur offer their Namaz. To the west of
Mohammadpur, lies that vacant plot which, as indicated above, is the
grazing ground. There is no public temple in the village Hariharpur.
Hence, the villagers of Hariharpur decided at meeting that a temple for
the entire Hindu community should be built on the western portion of
the plot of land which was earlier used as grazing ground. The Hindus
started constructing a temple at the aforesaid place to which the Muslim
inhabitants of the village Mohammadpur stoutly objected. The Hindus
did not pay any deed to such protests and went on building the temple in
the assertion that the land is the common property of the villagers
belonging to Hariharpur. They contended that the western boundary
wall around the Mosque clearly indicated the outer limit of the village
Mohammadpur on its western side. They also asserted that the disputed
plot was reocrded in the settlement Khatian of village Hariharpur. In
such circumstances, the Officer-in-charge, Durgapur Police Station,
made a report to the Sub-Divisional Magistrate, Durgapur, urging upon
him to pass an order u/s 144 Cr.P.C.
The SDM, Durgapur applied his mind and promulgated an order

u/s 144 Cr.P.C. in the following form.
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ORDER U/S 144 Cr. P.C.
To
All the Hindu inhabitants of the
Village : Hariharpur
Police Station : Durgapur
District : Burdwan
Whereas a report has been laid before me by the Officer-in-charge,

Durgapur Police Station.
Whereas a number of general diary entries have been produced

before me by him in support thereof.
Whereas I have examined him and perused his report and the G.D.
entries.
Whereas it has thereby been made to appear to me that an

unauthorized temple is being constructed on the piece of land as
described below, which is in the immediate neighbourhood of he Mosque
of the village Mohammadpur.
Whereas it appears from the material placed before me that

communal feelings are running high and serious tension is building up.
Whereas I am satisfied that it is a case of emergency and urgent

measures are called for immediately to prevent disturbance of public
peace and communal riot.
Now, therefore, I do hereby promulgate this order, in exercise of

the power vested in me u/s 144 Cr. P.C. prohibiting all the Hindu
inhabitants of village Hariharpur from making any construction or
erecting any structure in or upon the land described in the Schedule "A"
appended to this order or on any portion thereof.
This order takes effect at once and will remain in force till 20 th
June, 1993.
Given under may hand and seal this day of 18th May, 1993.
Seal of the SDM Sd/- A.K. Sen

S.D.M.
Durgapur
18.5.93.
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Schedule - "A"
Description of the land
The piece of land bearing Rivisional Settlement Plot No. 203

pertaining to Khatian No. 12 of Village hariharpur situated within the
local limits of Police Station Durgapur, in the Distt. Burdwan, measuring
1 (one) Bigha with the following boundaries :-
North : Dwelling house of Gaffar Khan

South : Tank of Abdul Molla
East : The Mosque
West : paddy land of Harpada pal
------------------------------------------------------------------------------------------
Note :
(i) This order was passed ex-parte.
(ii) It was directed against the Hindus residing in a particular place,

namely, village Hariharpur.
(iii) This order directed a section of the persons, from whom danger
was apprehended, to abstain from certain acts.
(iv) This order was to be promulgated by appropriate and adequate

means, so as to give effective notice to all concerned.
------------------------------------------------------------------------------------------
Instruction : Please examine the order critically and find out whether or
not it complies with and conforms to all the essential
requirements of law, as set out below:-
Order u/s 144 Cr. P.C.- Points to be borne in mind :-
(a) Order must be in wring.
(b) It must be definite and specific.
(c) It must set out the material facts.
(d) It must show application of mind and satisfaction as to the

existence of factors necessary for action u/s 144 Cr. P.C.
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(e) Emergency- the order should indicate that an emergent situation

has arisen.
(f) The thing which is prohibited.
(g) The persons who are prohibited.
(h) The place covered by the order.
(i) Period of time.
Meaning of
"Whereas" -(i) It is a conjunction.
(ii) It is a prefactorial expression implying "the fact being

that".
(iii) It means- "considering that things are such"
"Service"- An order u/s 144(1) should be served in the manner laid

down in Sec. 134 Cr. P.C.
Personal Service or where that is not practicable, by proclamation.
Proclamation may be made by beat of drums at the place where

the order notified is to have effect.
A copy of the proclamation should be stuck up at such place or

places as may be fittest for conveying the contents of the order.
It may be announced through microphone.
It may also be published in local papers.
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What is the nature of an order passed by a competent Executive

Magistrate u/s 144 Cr. P.C.?
In other words, is it Judicial or quasi-judicial or administrative in

nature?
The question is not entirely free from difficulty. The earlier view
taken by the Supreme Court was that an order u/s 144 Cr. P.C. was a
judicial and not an administrative order vide Madhu Limaye, vs SDM,
Manghyr reported in AIR 1971 SC 4488. In that case, the Chief Justice
Hidayatullah while examining when exercise of the power u/s 144 Cr.
P.C. would be justifiable, observed- "It is not an ordinary power flowing
from administration, but a power used in a judicial manner and which
can stand further judicial scrutiny…"
The same view had been expressed by the Supreme Court in

Babulal Parte vs State of Maharashtra reported in AIR 1961 SC 884. It
was later on reaffirmed in State of Bihar vs KK Mishra vide AIR 1971 SC
1667.
All the three cases referred to above were decided under the old
code of Criminal procedure, 1898. The new code of Criminal Procedure,
1973 (Act II of 1974) came into force with effect from 1 st April, 1974. The
new code brought about separation of the Judiciary from the Executive
as far as possible, by dividing the Magistrates into two classes, namely,
(1) Judicial and (2) Executive. Although the powers of trial have been
conferred upon the Judicial Magistrates, the Executive Magistrates have
been declared to be criminal courts within the meaning of Sec. 6 Cr. P.C.
In the revised set-up, Executive Magistrates generally exercise those
powers which may be described as administrative, as for example,
dispersal of an unlawful assembly. At the same time, the Executive
Magistrates have been vested with certain powers which are essentially
judicial in nature, as for example, holding of an inquiry u/s 145 Cr. P.C.
while the Executive Magistrates perform judicial functions under the Cr.
P.C., they ought be regarded as "Criminal Courts" within the meaning of
Section 6 Cr. P.C.
Fortunately for us, we have got an authoritative pronouncement of

the Supreme Court upon the nature of an order under Section 144 Cr.
P.C., decided dint he background of the scheme as envisaged in the new
code of Criminal Procedure, 1973. This has reference to the case of
Ghulam Abbas vs. State of U.P. reported in AIR 1981, Supreme Court
2198, corresponding to 1981 Criminal Law Journal (CLJ), 1835.
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In that 1981 case, it has been laid down that the order passed
under Section 144 Cr. P.C. by a competent executive magistrate is
neither judicial nor quasi-judicial. In the words of Supreme Court, it has
to be regarded as an executive order passed in performance of an
executive function for preserving public peace.
On the strength of the authority of the Supreme Court (Ghulam

Abhas vs State of U.P.), I have no hesitation in answering the question
posed above in the following words and I do so even at the risk of
repetition.
An order passed by competent executive magistrate under Section

144 cr. O.C. is neither judicial nor quasi-judicial. It is administrative
nature.
In this context, it should be remembered that even then an

administrative authority is bound to follow the principles of natural
justice. It is well-settled that even in an administrative proceeding,
which involves evil consequences, the doctrine of natural justice is
applicable and an administrative order must be made consistently with
the principles of natural justice.
An order under Section 144 is amenable to the writ petition of the

Supreme Court under Article 32 and the High Courts under Article 226
of the Constitution of India.
An order under Section 144 Cr. P.C. is also revisable by the High
Court or Court of Sessions under Section 397 Cr. P.C. In this context, it
should be noted that all the Magistrates, whether, executive or judicial,
should be deemed to be inferior to the High Court or the Session Judge
concerned for the purpose of exercise of the revisional powers. This
position flows out of the explanation below 397 (1) Cr. P.C. It is also
fortified by the decision of the Supreme Court in Ghulam Abhas vs State
of U.P. These aspects can not, as has been held by the Supreme Court,
make an order under Section 144 Cr. P.C. a judicial or quasi-judicial
order.
The point raised is thus disposed of.
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What a preliminary order under Section 145(1), Cr. P.C. should contain:-
(i) Indicate the basis on which the preliminary order is being drawn;
(ii) It should reflect application of your mind to the report of the police
officer or other information, as the case may be;
(iii) It should reveal your satisfaction that a dispute likely to cause a

breach of peace exists concerning the immovable property within
your territorial jurisdiction;
(iv) State the ground of your being so satisfied;
(v) Ask the parties concerned to attend your court in person or by a

pleader on a specified date and time and to put in written
statements of their respective claims as respects the facts of actual
possession of the subject of dispute;
(vi) Give a description of the subject of dispute; and
(vii) affix your signature and date.
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Civil Suit and Proceeding u/s 145 Cr.P.C.

- Their Interface
A number of participants of the current Phase I Programme

(December, 1990 to May, 1991) have approached me individually and
have asked pertinent questions relating to the effect of a Civil Case
involving dispute as to possession upon a Criminal Proceeding u/s 145
Cr.PC. The questions raised by them may be formulated into the
following points:-
(i) Does mere pendency of a Civil Suit out the jurisdiction of an

Executive Magistrate to proceed u/s 145 Cr.PC ?
(ii) When a suit involving the possession of immovable property has

been pending and a temporary injunction restraining the
defendant from interfering with the plaintiff's possession granted
therein, is initiation of a proceeding by the Magistrate u/s 145
Cr.PC justified ?
(iii) Is a decree or decision of the Civil Court on the point of possession

binding upon an executive Magistrate in a proceeding u/s 145
Cr.PC ?
2. These points were answered on the spot as and when put up. for
the benefit of the probationers, I have however, thought it fit and
proper to state in writing the law touching upon those points. That
explains the urge for presenting the probationers with this bulletin,
exclusively devoted to record suitable answers to the points posed
above.
3. Unfortunately, the judicial opinions expressed by t he different

High Courts on the subject have not been unanimous and
consistent. I therefore propose to state the law on the basis of the
recent decisions of the Supreme Court of India.
4. The latest ruling of the Supreme Court has been reported in 1989
CrLJ 82. (Jaumanlal vs. State of M.P. and Asgar Ali). I quote:-
(a) "It is true that in cases of dispute regarding immovable property a

party should not be permitted to litigate before the Criminal Court
when the Civil Suit is pending in respect of the same subject-
matter. That does not however, mean that a concluded order u/s
145 Cr.PC made by a Magistrate of competent unsuccessful party
has approached the Civil Court".
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(b) " An order made u/s 145 Cr.PC deals only with the factotum of
possession of the party as on particular day. in confers no title to
remain in possession of the dispute property. The order is subject
to decision of the Civil Court."
(c) "The unsuccessful party, therefore must get relief only in the civil
court. He may move the Civil Court with properly constituted suit.
He may file a suit for declaration and prove a better right to
possession. The Civil Court has jurisdiction to give a finding
different from that which the Magistrate has reached."
5. In that case, the dispute was between Jhumanlal and Asgar Ali
over possession of a shop. The proceeding u/s 145 Cr.PC was
decided in favour of Jhumanlal. Jhumanlal was found to have
been forcibly to 145 (4) Cr.PC. Hence, the order u/s 145 Cr.PC
directed that possession of Jhumanlal be restored.
6. Before Jhumanlal could be put into possession of the disputed

property, Asgar Ali filed a suit for injunction in the Court of Munsif
and obtained a temporary injunction against Jhumanlal.
Jhumanlal appealed to the District Judge against the order of
temporary injunction, whereupon the order of temporary
injunction was vacated. Asgar Ali thus lost both in the Court
of temporary injunction. he then moved the High Court u/s 482
Cr.PC for quashing the proceeding u/s 145 Cr.PC. The High Court
of M.P., relied upon a decision of the Supreme Court reported in
19085 CrLJ 752 (Ram Sumer Puri vs. State of U.P.) and
quashed the proceeding u/s 145 CrPC.
7. Jhumanlal then approached the Supreme Court seeking its

intervention under Article 136 of the Constitution of India. The
Supreme Court set aside the order of the High Court and restored
the order of the Executive Magistrate. In that context, the Supreme
Court made the observations as quoted in paragraphs 4(a) (b) and
(c) above.
8. Here we should advert to the case of Ram Sumer Puri vs. State of
U.P. reported in 1985 CrLJ 752, which was mentioned by the
Supreme Court in its decision in the case of Jhumanlal. The
relevant observation of the Supreme Court in the case of Ram
Sumer Puri (1985 CrLJ 752) is as follows :-
(a)"When Civil litigation is pending for the property wherein the

question of possession is involved and has been adjudicated, we
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see hardly any justification for initiating a parallel criminal

proceeding u/s 145 Cr.PC."
(b)"There is no scope to doubt or dispute the position that the

decree of the Civil Court is binding on Criminal Court in a matter
like the one before us."
(c) "Parallel proceedings should not be permitted to continue and in

the event of a decree of Civil Court, the Criminal Court should not
be allowed to invoke its jurisdiction particularly when possession
is being examined by the Civil Court and parties are in a position
to approach the Civil Court for interim orders such as Injunction
or appointment of Receiver for adequate protection of the property
during pendency of the dispute."
(d) "Multiplicity of litigation is not in the interest of the interest of the

parties nor should public time be allowed to be wasted over
meaningless litigation. We are, therefore satisfied that parallel
proceedings should not continue and the order of the learned
Magistrate should be quashed."
9. In order to appreciate the import of the ruling, we should know the

facts of the case of Ram Sumer Puri. Briefly speaking, that was a
case in which a civil suit for injunction was instituted first. That
suit was dismissed by the Trial Court. The Plaintiff appealed
against that dismissal. While the appeal was pending, some close
relations of the Plaintiff, initiated the proceeding u/s 145 Cr.PC. It
was in those circumstances that the Supreme Court made the
observations as reproduced in paragraphs 8(a), (b), (c) and (d)
above.
The observations made by the Supreme Court ought to be read in

the context of facts of that case. Here, it is relevant to quote the
dictum of the Privy Council (AIR 1940 PC 230):
"Every judgement must be read as applicable to the particular

facts proved or assumed to be proved, since the generality of
the expressions which may be found are not qualified to be
expositions of the whole law but governed or qualified by the
particular facts of the case in which such expressions are to be
found."
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After having cited the two recent Supreme Court decisions and
having indicated how they are to be read, I should proceed to
answer the points formulated in the first paragraph:-
(i) No, mere pendency of a civil litigation in respect of dispute

property will not oust the jurisdiction of the Magistrate to proceed
u/s 145 Cr.PC.
Note: I am fully supported in the view I have expressed just now by the
rulings reported in 1987 CrLJ 2033 (Kerala) and 1987 CrLJ 1198
(Punjab & Haryana). Wherein the import of the decision of the
Supreme Court in Ram Sumer5 Puri was duly considered.
(ii) No, when a suit has been pending and a temporary injunction has
been issued by the civil Court in aid of the possession of a party, a
proceeding u/s 145 Cr.PC must not be allowed to be initiated at
the instance of the opposite party. That will, if permitted,
constitute a parallel proceeding, which is prohibited. A situation of
that kind is fully covered by the decision delivered by the Supreme
Court in Ram Sumer Puri. The existence of an order of injunction
creates a complete bar to the passing of any order under Section
145/146 Cr.PC subsequently vide the ruling of the Delhi High
Court reported in 1988 Cr.LJ 977. Reference may also be made to
the decision of the Punjab and Haryana High Court reported in
1987 CrLJ 1326 and also the decision of the M.P. High Court
reported in 1988 CrLJ 1905.
(iii) Yes, it is binding. In a proceeding u/s 145 Cr.PC, it is the duty of

the Executive Magistrate to give effect to the decision of the Civil
Court and to see, as far as possible, that the decree is maintained.
It would otherwise put a premium upon decision of the orissa High
Court reported in 1987 CrLJ 758.
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SEARCH - AN OUTLINE
Introduction:
Search is an effective tool in the hands of the authority and

at the same time, it constitutes a serious invasion on the liberty of
a person.
1. Search- Its meaning :
i) Looking for
ii) Exploration
iii) Probing
Search implies an exploratory examination or probing into or

seeking out something which is hidden, suspected and not
open, exposed or demonstrated.
2. Search- Where?:
i) House, building and premises

ii) Person
iii) Vehicle
iv) Vessel
3. Search- What for?:
i) Discovery of contrabrand article or illicit goods or stolen

property
ii) Documents- which may be relevant or incriminating in any

form
iii) Evidence of guilt
4. Search of Person - Its Objects : (Section 51 Cr. P.C. and

Section 100 (3) Cr. P.C.)
i) To find incriminating articles.

ii) To seize offenensive weapon (Sec. 52 Cr. P.C.)
iii) To look for any other thing which may be useful for
investigation- marks of injuries on his person.
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5. Search of a Place- What it is?:
Defined in Sec. 2 (p) Cr. P.C.
Place includes:
(a) House
(b) Building
(c) Tent
(d) Vehicle
(e) Vessel
Relevant Sections of Law:
i) Search of a place entered by a person sought to be arrested -

Sec. 47 Cr. P.C.
ii) Without warrant, for investigation - Sec. 165 Cr. P.C.
iii) Search under warrant issued by the Court :
(a) For production of certain document or thing (S- 93)
(b) Place, suspected to contain stolen property etc. (S94)
(c) For publications forfeited by the Government. (Sec-95)
(d) Recovery of person wrongfully confined. (Sec- 97)
(e) Restoration of abducted females (Sec - 98)
(f) Document or thing in postal custody. (S-92)
6. Search Warrant - What it is?:
A search warrant is a warrant issued by a Court for the

search of a place to be executed in the same way as a warrant for
arrest of a person (Sec. 99), subject to the special safeguards
provided in Section 100 Cr. P.C.
Simply speaking, it is an authority given by a competent

public servant to search a place for any thing or person.
Note : Issuing a search warrant by an Executive or Judicial Magistrate is

a judicial act.
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7. Search by Magistrate in his presence: (Section 103 Cr. P.C.)
Any Magistrate (Judicial or Executive) is empowered to direct

search to be made;
a) In his presence.
b) Of any place.
c) For the search of which he is competent to issue a search
warrant.
8. Seizure:
The act or taking possession of property for violation of law

contrary to the wishes of the owner.
9. Planting:
Planting of any incriminating article by the law enforcement

officer in the place to be searched and showing a search before
witnesses according to all formalities.
10. Points to be Borne in Mind in the Context of Search:
i) Reasonableness of the search.

ii) Time likely to be taken in conducting the search.
iii) Likelihood of the incriminatory property being destroyed.
iv) Calling upon two witnesses.
v) Must be in presence of witnesses.
vi) Preparation of search list.
vii) the occupants to attend search.
viii) Disclosure of identity by Public Servants making the search.
ix) Showing of the authorisation.
x) Woman- by a woman- decency and decorum to be observed.
xi) Public Servants called to constitute a search party should be
tight-lipped.
xii) Members of the Search Party should organise themselves
effectively.
xiii) They should offer themselves to be searched.
xiv) One or two members of the Search Party should keep a
watch over the members of the search party.
xv) After entry, no outsider, except medical officer or legal
practitioner, should be called at the request of the party.
xvi) Search party should take control of the telephone, if any.
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xvii) Members of the Search Party should be cool, polite and

courteous.
11. Elements of a Search:
Three S; It should be;
Sudden
Surprise
Swift
It should have;
i) Authenticity
ii) Secrecy
iii) Co-ordination
12. What Search Party should Carry?:
i) Authorisation
ii) Search material, Panchnama forms, blank papers, carbons,
pins, tags etc.
iii) Valid identity cards.
iv) Seals
v) Pen, Pencil etc.
Organise effectively/call witnesses/offer yourself for

search, before and also after search (at the point of entry and
also at the point of exit).
13. Enactments under which Searches may be conducted by

person authorised to do so:
i) Arms Act.
ii) Essential Commodities Act.
iii) Opium Act.
iv) Excise Act (State).
v) Income- Tax Act.
vi) Customs Act.
vii) State Gambling Act.
viii) Motor Vehicles Act.
ix) Prevention of Food Adulteration Act.
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x) Prevention of Corruption Act.

xi) Code of Criminal Procedure.
xii) Prevention of Immoral Traffic Act.
xiii) The Dramatic performance Act.
xiv) Gold Control Act.
14. Irregularity in Search:

i) Does not vitiate seizure of articles.
ii) Can not vitiate trial or conviction unless accused has been
prejudiced.
iii) It casts a duty upon the Court to scrutinise evidence
carefully.
iv) It may affect the weight of evidence. (vide Section - S. 465 Cr.
P.C.)
15. Law Relating to Search At a Glance:
(a) Search Warrants
i) Sec. 93 Cr.P.C. - General Search

ii) Sec. 94 Cr. P.C. - Stolen Property/Forged Documents
etc.
iii) Sec. 95- Cr. P.C. - Forfeited Publications
iv) Sec. 97 Cr. P.C. - Wrongfully Confined Persons
v) Sec. 98 Cr. P.C. - Restoration of abducted females.
(b) Search without warrants:
(i) Magistrate;- 103 Cr. P.C.
(ii) Police Officer (O/C) -
. Section 165 Cr. P.C.

(c) Search Procedure
i) Sec. - 47 Cr. P.C.

ii) Sec. - 100 Cr. P.C.
iii) Sec. - 165 Cr. P.C.
(d) Search of a Person

i) Sec. - 51 Cr. P.C.
ii) Sec. - 52 Cr. P.C.
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(e) Power of Police to Seize without warrant
Sec. - 102
THE INDIAN EVIDENCE ACT, 1872 - AN INTRODUCTION
(PART-I)
1. Extent of Operation
It extends to the whole of India except the State of Jammu and

Kashmir.
2. Date of Commencement
It came into force on 1st September, 1872.
3. Applicability
It applies to all judicial proceedings in or before a court.
4. Court : What it includes
(a) The “Court” includes all Judges and Magistrates.

(b) It also includes all persons, other than Arbitrators, legally
authorised to take evidence.
5. Judicial Proceeding : What it means
(a) It is not defined in the I.E. Act.

(b) Section 2(i) Cr.PC has given a definition of it.
(c) It includes any proceeding in the course of which evidence is
or may be legally taken on oath.
6. I.E. Act where not applicable
The provisions of I.E. Act are not applicable to :
(a) Departmental Disciplinary Proceedings
Note : Rules of Natural Justice must, however, be observed in

departmental proceedings. Fundamental Principles underlying
certain provisions of the Indian Evidence Act, which are based on
fair play, equity, good conscience and Justice, should however be
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followed in departmental inquiries. Ordinary rules of proof, not the

strict and sophisticated rules of evidence, are however, applicable.
AIR 1963 S.C. 375

AIR 1969 S.C. 983
AIR 1976 S.C. 1080
(b) Domestic Tribunals.

(c) Proceedings before Arbitrators.
(d) Affidavits presented to court or an officer.
7. Nature of the I.E. Act
(a) The I.E. Act is basically a branch of “Adjective” Law. In its

essence, it is procedural by nature.
(b) It deals with the establishment of the facts in issue by

production of evidence.
(c) The object of every judicial proceeding is to determine either

a right (as in a Civil case) or a liability (as in a criminal trial).
(d) Evidence Act tells us :
i) What are facts-in-issue.

ii) What facts are relevant.
iii) What facts are admissible.
iv) What facts may be proved.
v) What facts may not be proved.
vi) What kind of evidence may be given of a fact
which is to be proved.
vii) Who is to produce such evidence.
viii) How it is to be given.
8. Basic rules of Evidence.
i) Best evidence must be produced.

ii) Hearsay evidence is not admissible.
iii) Evidence may be given of facts in issue and relevant facts
(Sec.5).
iv) All facts, except the contents of documents, may be proved
by oral evidence (Sec. 59).
v) Facts judicially noticeable need not be proved (Sec. 56).
vi) Facts admitted need not be proved (Sec. 58).
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vii) Oral evidence must be direct (Sec. 60).
9. Evidence - What it is ?
a) It is the usual means of proving or disproving a fact under

trial or inquiry.
b) It does not include arguments.
c) It tends to convince the court of the truth or otherwise of the

matter
Note :
The definition of evidence as given in Section 3 of the Indian
Evidence Act is a narrow one. It does not include real evidence.
A Court is to consider the matters before it while deciding whether

or not a particular fact has been proved.
10. “Matters before Court” :-
They include evidence and also certain non-evidence material,

such as,
i) Material objects.
ii) The demeanour of witnesses
iii) Local inspection held by a Judge/Magistrate.
iv) Answers given by the accused in course of examination u/s

313 Cr.PC.
v) A confession made by a prisoner.
11. Evidence and Proof :
a) Evidence means all the legal means exclusive of mere

arguments, which tend to prove or disprove any fact, the
truth of which is submitted for judicial determination.
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b) It is the instrument by which the court is convinced of the

truth or otherwise of the matter under inquiry/trial.
c) Proof is the result of appreciation of evidence by the Court.
d) Proof signifies the belief of the Court in the existence of a fact

- a belief arrived at upon consideration of the matters before
it including the evidence.
e) Evidence is produced before the court in order to prove the

facts in issue. Hence, evidence is the means whereas proof is
the end. Proof is the effect of evidence.
12. Facts in issue :
Facts in issue mean the matters in dispute. They are the facts
which a party to a litigation must prove in order to succeed in his
claim or defence. They are to be found in pleadings or charge, as
the case may be. They are sometimes called the principal facts.
Facts in Issue - Example :
“A” is charged with having murdered “B”. “A” pleads not guilty.
The facts in issue are :-
i) that “B” died.
ii) that it was a homicidal death.
iii) that “A” caused B’s death
iv) that “A” intended to kill “B” (Mens rea)
“X” was an eye-witness to the occurrence.
The testimony of “X” was direct evidence.
13. Disproved and not proved.
The Evidence Act has drawn a clear distinction between these two
expressions. The definitions given in Section 3 describe the degree
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of certainty to be arrived at before a fact may be said to be

disproved or not proved.
A fact is said to be “not proved” when it is neither proved not

disproved. It is, therefore, neither positive nor negative. On the
other hand, a fact is said to be “disproved” when its non-existence
is either believed or accepted by the court as highly probable. “Not
proved” implies that the material on record falls short, of the
requisite proof. “ Disproved”, on the other hand, means that the
material is sufficient to establish the non-existence of the fact
asserted.
14. Proved
The Evidence Act while defining “proved” provides for two

conditions of mind. First that in which a man and (it includes a
woman) feels absolutely certain of a fact in other words “he
believes it to exist”. Secondly, in which though he may not feel
absolutely certain of a fact, he thinks it so extremely probable that
a prudent man would under the circumstances act on the
assumption of its existence.
AIR 1990 SC 1459.
15. Evidence - Classification
a) Oral
b) Documentary
c) Real
16. i) Oral Evidence is evidence from persons, namely, witnesses.
ii) Documentary evidence is evidence from documents.
iii) Real evidence is evidence from things other than documents.
17. Oral Evidence - Statements made by the witnesses in Court.
18. Documentary Evidence -
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Documents produced for inspection of the Court - such as :
a) a letter
b) a sale-deed
c) a deed of agreement
d) a seizure memo
e) an inquest report
19. Real evidence - material objects other than documents,

produced for inspection by the court.
Examples
a) Dagger,
b) Revolver,
c) Blood stained clothes,
d) A torn garment
20. All legal Evidence is either Direct or Circumstantial
Direct Evidence : When the principal fact is attested directly by

witnesses, things or documents.
To all other forms of evidence, the term circumstancial evidence is

applied.
21. Circumstantial Evidence :
Ordinarily means evidence of a fact form which some other fact is

inferred.
In circumstantial evidence, facts in issue are indirectly inferred

rather than directly perceived.
Examples :
Motive, preparation, conduct, opportunity, position of the parties

etc.
22. Circumstantial Evidence : ( Example)
“A” was charged with the murder of “B”
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“PW1” proved than “A” had enmity with “B”
“PW2” testified that “B” was last seen in the company of “A”
“PW3” deposed than “B” was wearing ornaments (a ring and chain)
“PW4” stated that “A” was sharpening a knife.
“PW5” (Autopsy Surgeon) opined that the injury sustained by “B”

might have been caused by that knife.
“PW6” (a Jeweller) gave out that “A” sold the above ornaments to
him on the day next to murder.
Result : “A” was found guilty of the charge. The case hinged
entirely on circumstantial evidence.
23. Circumstantial Evidence - three tests to be satisfied :
i) the circumstances must be cogently and firmly established.
ii) those circumstances should be of a definite tendency

unerringly pointing towards guilt of the accused.
iii) the circumstances taken collectively should form a chain so

complete that there is not escape from the conclusion that
within all human probability the crime was committed by the
accused and none else.
References :
AIR 1960 S.C. 500
AIR 1976 S.C. 917
AIR 1977 S.C. 1116
24. Document :
Reference :
Section 29 IPC
Section 3 I.E. Act.
Section 3 (18) General clauses Act.
Document means :
a) any matter
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b) expressed or described upon any substance by letters,

figures or marks intended to be used or may be used for
recording that matter.
Documents : (Examples) :
i) a writing
ii) a map
iii) a plan
iv) a summons
v) a notice
vi) an order
vii) a sale-deed
viii) a receipt
ix) a blue-print
x) an X-ray plate
xi) a book of account
xii) a caricature
xiii) an inscription on a stone
xiv) a tape
25. Contents of a Document
How to prove ? (Section 61)
by primary evidence which the by secondary evidence which the Law

Law requires to be given. It means permits to be given in absence of
the document itself produced for primary evidence after due explanation.
inspection of the Court.
26. Documentary Evidence :
Chapter - V
Proof of contents : Section 61
Primary evidence : Section/62/64
Secondary evidence : Section 63/65
Proof of writing etc. : Section 67
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Public Documents : Section 74
Certified copies of : Section 76

Public Documents
27. Secondary Evidence (Section 63)
a) A certified copy
b) Copy made from the original by mechanical process
c) Copy made from or compared with the original
d) Counter-parts of documents
e) Oral accounts of the contents.
28. Public Documents :
a) Documents forming the acts or records of the acts.
i) of sovereign authority
ii) of official bodies and tribunals
iii) of public officers - legislative judicial or executive
b) Public Records kept in any state of private documents.
Public Documents : (Examples) -
i) a charge-sheet u/s 173 Cr.PC.

ii) Birth and Death Register
iii) F.I.R.
iv) Judgement of a Court
v) Order Sheet
vi) An Income-Tax return
vii) Permit under M.V. Act.
viii) Ballot paper
29. Expert Evidence
Reference :
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a) Section 45 and 46 of Indian Evidence Act.

b) Section 291, 291 and 293 Cr.PC.
Expert - Who is ?
a) He is a person specially skilled in that subject.

b) Expert is one who possesses superior knowledge and
practical experience.
Note : It may not depend upon any degree.
An Excise Inspector who has served as such for 21 years and has
tested may many samples of liquor may be treated as an Expert
(AIR 1974 Supreme Court 639).
Generally speaking a witness is to testify as to facts falling within

his personal knowledge vide Section 60 Evidence Act.
30. Expert - Examples (Illustrative and not exhaustive)
i) Medical Expert
ii) Finger Print Expert
iii) Foot Print Expert
iv) Handwriting Expert
v) Arms Expert
vi) Explosives Expert
vii) Public Analyst
viii) Chemical Examiner
ix) Serologist
x) Ballistics Expert ( Science of protectiles in motion)
xi) Officers of MINT
xii) Motor Vehicle Expert
xiii) Physicist
xiv) Entomologist
xv) Toxicologist
xvi) Photographer
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31. Relevancy and Admissibility
a) These two expressions are not identical.
b) Relevancy is determined by logic whereas admissibility is

founded upon Law.
c) When we say that a particular evidence is admissible, we

presuppose that it is also relevant.
d) Roughly speaking, what is relevant is generally admissible.
e) Strictly, all relevants facts are, however, not admissible.
f) Relevant facts are those which have some sort of connection

or relationship with the Facts-in-issue.
(g) In an inquiry or trial, the basic idea is to establish facts-in-

issue but when direct evidence to prove fact-in-issue is not
available, then evidence is or may be given of relevant facts,
with a view to substantiating the facts-in-issue.
(h) In order to find out whether or not a particular fact is

relevant, you are to check up whether or not it falls within
the purview of any of the sections 6 to 55 of the Indian
Evidence Act.
(i) If it comes within the ambit of any such section, then it is

relevant.
(j) Then the question to be addressed is :
- Has its reception been expressly barred under any of the

provisions of the Indian Evidence Act, as for example,
Sections 122, 123, 124 and 126 etc. (Previleged
Communications).
(k) If it is barred under the provisions of Indian Evidence Act,

then it becomes inadmissible, notwithstanding its relevancy.
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(l) There is certain facts which may not be relevant but the
Indian Evidence Act permits them to be received in Evidence,
as for example - questions to test the veracity of a witness
and to discover who he is and what is his position in life vide
Section 146 Indian Evidence Act.
(m) Admissibility, therefore, signifies that a particular fact is

relevant u/s 6 to 55 Indian Evidence Act and also that its
reception in evidence is not prohibited.
(n) Admissibility should be determined with reference to the

provisions of the Indian Evidence Act.
32. Relevancy -
Sections 6 to 55 Indian Evidence Act - a broad division
(i) Connected facts (Sections 6 - 16)
(ii) Statements
(a) Sections 17-31

(b) Sections 32-33
(c) Sections 34-39
(iii) Judgements (Sections 40-49)
(iv) Opinions of third persons (Sections 45-51)
(v) Character of Persons (Sections 52-55)
33. Admissibility
A fact, in order to be admissible, should not only be relevant u/s

6-55 Indian Evidence Act, but must not also be prohibited under
the Indian Evidence Act, as for example :
(i) Contents of documents can not generally be proved by oral

evidence (S.59)
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(ii) Oral evidence must be direct (S. 60) Hearsay is not

admissible.
(iii) Contents of documents may be proved either by primary or

secondary evidence and not otherwise (S.61)
(iv) Documents must be proved by primary evidence except in

cases falling under Section 65(vide S.64)
(v) Contents of public documents are proved by production of

certified copies (S.77)
(vi) Proof of other official documents (S. 78)
(vii) Presumptions (S.79-90 and S.114)
(viii) Exclusion of oral by documentary evidence (S.91-100)
(ix) Estoppel (S.115-117)
(x) Competency and compellability (S.118-121)
(xi) Privileged communications (S.122-129, 132 and 133 etc.)
(xii) Lending questions can not be asked during the Examination-

in-chief (S.142)
(xiii) Questions not to be asked without reasonable grounds

(S.149)
(xiv) Indecent and scandalous questions may be forbidden (S.151)
(xv) Question intended to insult of annoy may be prohibited

(S.152)
(xvi) Exclusion of evidence to contradict answers(S.152)
(xvii) Question that may be asked to a Hostile witness by the party

which called him (S.154)
34. Standard of Proof
While Civil case may be proved by mere preponderance of evidence,

in criminal case prosecution must prove the charge beyond
reasonable doubt (AIR 1990, SC 209)
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Note : Only proof beyond reasonable doubt and not conclusive proof is
required for conviction (Ref. AIR 1987, SC 482)
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Reference and Bibliography
(1) Law of Evidence by Sudipto Sarkar and V.R. Manothar,

Fourteenth Edition, 1993 in two volumes
Publishers : Wadhwa and Company, Agra, Nagpur
(2) Law of Evidence by S.P. Sen Gupta,
Publishers : Kamal Law House, Calcutta
(3) Law of Evidence by A.N. Saha
Publishers : Eastern Law House, Calcutta
(4) Principles and Digest of the Law of Evidence

Original Author, Chief Justice M. Monir
Revised by : Justice Deoki Nandan
Publishers : The University Book Agency, Allahabad
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EXAMINATION OF WITNESSES
1. Explanation
(a) "Witness" means a person who gives evidence before a court. In

other words, he is one who testifies about something at any Trial or
Inquiry.
Note: Court includes all Judges and Magistrates and all persons except
arbitrators, legally authorised to take evidence vide Sec.3 of the
Evidence Act.
(b) Examination In the context of examination of witnesses, the term

"examination" implies "interrogation" it generally consists of
putting a number of questions to the witness by the parties or
their lawyers with a view to obtaining matters in dispute and
placing them before the Court :
Note:(i)All statements which the Court permits or requires to be made

before it by witnesses are called "oral evidence".
(ii)Oral evidence should be direct. The testimony must be of a person

who
perceived the fact deposed through his or her senses.
2. Examination of witnesses where the related law is to be found
(a) Chapter X of the Indian Evidence Act deals with "Examination of

witnesses".
(b) Chapter X contains 32 Sections, beginning from Sec. 135 and

ending with Sec. 166.
(c)I It is expected that you will read the Chapter as a whole as part of
your self study and learn the rules laid down therein.
(d) Emphasis ought to be given to the following aspects :
(j) Order of examination of witnesses.
(ii) Examination-in-chief, Cross-Exam. and Re-examination.
Their objects and questions that may be asked during each of such
examinations.
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(iii) Leading questions.

(iv) Corroboration and contradiction.
(v) Hostile witness and evidentiary value of his testimony.
(vi) Impeaching credit of witnesses.
3. Order of examination of witnesses
(a) In civil cases, the order of examination of witnesses is regulated by

order 17 of the code of civil procedure. The general rule is that the
party upon whom the burden of proof rests should begin.
(b) In criminal cases, the legal burden of proof invariably lies

upon the prosecution to prove the charge against the
accused beyond reasonable doubt and hence, the
prosecution, always begins.
The prosecution should examine witnesses in their proper order so

as to bring out facts in their logical sequence. Generally eye-witnesses, if
any, are examined first and there after the other witnesses, such as post
occurrence witnesses, expert witnesses and formal witnesses.
4. Examination of a witness
(a) It has three parts, namely :-
(i) Examination-in-chief
(ii) Cross-examination
(iii) Re-examination
(b) The examination of a witness by the party who calls him is called
"Examination-in-chief".
(c) The examination of a witness by the adverse party is known as

"cross-examination".
(d) The examination of a witness subsequent to the cross-examination

by the party which called him is described as "Re-examination"
(vide Sec.137 Evidence Act.).
5. Order of Examination
(a) A witness is first examined-in-chief.
(b) He shall thereafter be cross-examined, if the adverse party so

desires.
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(c) He may then be re-examined, if the party calling him so desires.

(vide Sec.138 Evidence Act.)
6. Examination-in-chief
(a) It must relate to relevants facts.
(b) It is generally not permissible to ask leading questions during

examination-in-chief.
(c) Leading questions may, however, be allowed if the adverse party

does not object or when the court permits them to be put.
(d) The court permits leading questions as to matters which are

introductory or undisputed or which have, in its opinion, been
already sufficiently proved (vide Sec.142 Evidence Act.).
(e) It is through the process of examination-in-chief that a party, who

has called the witness, elicits from the witness the evidence
relevant to the issues and favourable to him.
7. Cross-examination
(a) As soon as a witness is examined-in-chief, by the party calling

him, he may be cross-examined by the adverse party.
(b) Leading questions may be asked in cross-examination.
(c) Cross-examination must also relate to relevant facts but it need

not be confined to the facts to which the witness testified during
the examination-in-chief.
(d) The objects of cross-examination are :
(i) to discredit the witness.
(ii) to obtain from such witness statements and admissions favourable

to the party, cross-examining him.
(iii) to destroy or weaken the case of the opponent.
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(e) Questions that may be asked during the cross-examination,

besides those already indicated, are specified in Sec. 146 of the
(f) The court is competent to control cross-examination.
(g) Indecant and scandalous questions may be forbidden by the Court

(vide Sec.151).
(h) Questions intended to insult or annoy ought to be rejected (vide

Sec.152).
8. Re-examination
(a) After the cross-examination is over, the party who called the
witness, may re-examine him.
(b) The purpose of re-examination is to seek-explanation or

clarification on matters that arose during the cross-examination
and may be unfavourably construed against the party which called
the witness.
(c) Re-examination can not be allowed for new matters except with the
leave of the court.
(d) If any new matter is permitted to be introduced during re-

examination, the adverse party acquires the right to cross-examine
upon that matter.
9. Leading Questions
(a) Any question suggesting the answer which the party putting it
wishes or expects to receive is called a leading question (vide
Sec.141).
(b) In other words, a leading question is one which puts words into
the month of the witness or suggests the answer which the
examiner expects of him.
(c) When a leading question may or may not be asked has already
been spelt out vide paragraphs 6(b), (c) and (d) and 7(b).
(d) The question "were you playing football, at that time? is a leading
question.
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It should have been put in this form - what were you doing at that time?
10. Corroboration
(a) Its meaning - corroboration literally means the act of corroborating

or confirming.
(b) To corroborate is to confirm, to strengthen, to support, to add

weight to credibility.
(c) Corroboration pre-supposes that there is some evidence to be

corroborated. The evidence by means of which corroboration is
made is called "corroborating" or "corroborative evidence".
(d) Corroborative evidence should be legally admissible and

independent of the evidence sought to be corroborated.
(e) Corroborative evidence may be direct or circumstantial.
(f) The object of corroboration is to satisfy the court that the witness,
whose testimony is corroborated, told the truth.
(g) When evidence is wholly reliable, the court need not insist on
corroboration. When the evidence is wholly unreliable, the court
should reject it without looking for corroboration. But when the
evidence is neither wholly reliable nor wholly unreliable, it is the
duty of the court to ask for corroboration.
(h) When the court should ask for corroboration is more a matter of
prudence and practice than of law.
(i) Questions tending to corroborate evidence of relevant fact is

admissible vide Sec. 156 Evidence Act.
(j) Former statement of a witness may be used to corroborate his

present testimony vide Sec.157 of the Evidence Act.
(k) Examples :
(i) F.I.R. is a piece of corroborative evidence. It corroborates the
maker of the FIR when he gives evidence in court as to
matters mentioned in the FIR.
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(ii) The statement of a witness recorded by a Judicial Magistrate

u/s 164 Cr.P.C. during Police Investigation may be used to
corroborate his testimony at the trial.
(iii) The oral testimony of a witness may be corroborated by

circumstantial evidence.
Note: Substantive Evidence :
(a) The word `substantive' implies something essential,

independent or real.
(b) Substantive Evidence means the "evidence" which may form

the foundation of a judicial decision.
(c) the expression "substantive Evidence" is used in contra-

distinction to the term "corroborative evidence"
(d) A dying declaration is a substantive evidence, because if it is

found to be voluntary, truthful and reliable, a conviction
even in a case of murder, can be based solely upon a "dying
declaration".
(iv) (a)Contradiction is the act of contradicting.
(b)To contradict is to affirm to the contrary.
(c)The second part of Sec.145 Evidence Act deals with

contradiction of a witness with reference to his previous statement.
(d)Attention of the witness should be drawn to that part of his

previous statement which is intended to be used for the purpose of
contradiction vide Sec.145.
(e)The object of contradiction is to impeach the credit of the

witness vide Sec.155(3) Evidence Act.
(f)A witness may be contradicted with reference to his previous

statement.
(i)recorded by the police u/s 161 Cr.P.C.
(ii) taken down by the Magistrate u/s 164 Cr.P.C.
(iii)deposition or
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(iv) or any other document such as FIR, letter, report or case diary,
tape-recorded conversation etc.
12. Hostile witness
(a)The term "hostile witness" does not occur in the Indian Evidence
Act.
(b)It has not, therefore, been defined in the Evidence Act.
(c)In common parlance, it means a witness who is permitted by the

court to be cross-examined by the party which called him. Such
permission may be granted by the court, in the exercise of its
judicial discretion, u/s 154 Evidence Act.
(d)If such permission is granted, then the party, which called the
witness, shall become entitled to ask questions to him which may
be put in cross-examination by the adverse party.
(e)A hostile witness is he who, from the manner in which he gives

evidence, shows that he is not desirous of telling the truth to the
court. This description is based on judicial decisions.
(f)The discretion conferred upon the Court u/s 154 E. Act is

unqualified. It should be exercised whenever the court from the
witness's demeanour, temper, attitude, bearing or the tenor and
tendency of his answers or from perusal of his previous
inconsistent statement or otherwise, think that grant of such
permission is expedient to extract the truth and to do justice.
13. Evidentiary value of the testimony of a hostile witness
(a) When a witness is cross-examined and contradicted by the party

calling him, with the leave of the court, his evidence can not, as a
matter of law, be treated as washed off the record. It is for the
court to consider in each case whether as a result of such cross-
examination and contradiction, the witness stands thoroughly
discredited or can still be believed in regard to part of his
testimony.
(b) Simply because a witness has been declared hostile, his testimony
does not become unreliable on that count. The evidence remains
admissible in the trial and there is no legal bar to base a conviction
upon his testimony, if corroborated by other reliable evidence.
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(c) The evidence of a hostile witness can not be excluded from

consideration altogether. It should be taken into account for
whatever it is worth.
14. Impeaching credit of a witness
(a) The credit of a witness may be impeached by the adverse party or

by the party which called him with the permission of the court.
(b) There are various modes of impeaching the credit of a witness.

Cross-examination is one of them. Production of independent
evidence is another, Contradiction is another.
(c) Cross-examination has been mentioned and dealt with under Secs.
137, 138, 140, 143, 145, 146 etc.
(d) Contradiction has been provided for in Sec.145 and 153.
(e) The other modes of impeaching the credit of a witness have been
enumerated in Section 155.
(f) After the evidence for the parties has been produced and after the
arguments for them have been heard, it is the duty of the court to
appreciate the evidence, namely, oral, documentary and material.
As evidence is tendered through human agency, that is, witnesses,

the court is called upon to assess the credibility of each witness.
In doing so, the court has to consider the following :
(i) Is the witness possessed of the knowledge of the facts and

circumstances of the case ?
(ii) Is the witness impartial ?
(iii) Is the witness truthful ?
(iv) Has the witness respect for his oath or affirmation ?
The adverse party may assail any or two or more of those

attributes and once he succeeds in doing so and disauading the court
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from placing reliance upon the testimony of a witness, his credit may be
said to have been impeached.
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BURDEN OF PROOF
1. Where to be found
(a) The expression "Burden of proof" occurs in Chapter VII of the

(b) Sections 101 to 111 contained in Chapter VII of the Indian

Evidence Act deal with and relate to Burden of the proof.
(c) Out of these eleven sections, namely, Sections 101 to 111, the first
six sections, that is sections 101, 101, 103, 104, 105 and 106 are
more important.
2. The meaning of "Burden of Proof"
(a) The term "Burden of Proof" has not been defined in the Indian
Evidence Act.
(b) It is used in two different senses. Its two distinct meaning are
sometimes confused.
(c) In the first place it means the obligation of a party to establish a

case. In the second place, it refers to the obligation of a party to
adduce evidence.
(d) The burden of proof, in the first sense, never shifts. It remains
constant.
(e) The burden of proof, in the second sense, is unstable and may
shift from time to time.
3. Name given to the two burdens
(a) The burden of proof, in the sense of "duty to establish a

case, is known as legal burden.
(b) The burden of proof, in the sense of duty to adduce evidence,

is called "evidential burden". It is sometimes termed as "onus
of proof" or "onus probandi".
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4. Onus Probandi - its strict meaning
It is that if no evidence is given by the party on whom the burden

is cast, the issue must be found against him.
5. Examples :
(i) A is charged with murder of B. The defence of A is that he

was insane when B was killed. Here, by reason of Sec. 105
Evidence Act, the burden is upon À' to prove his alleged
insanity. This burden is the evidential burden. If À' does not
produce any evidence at the trial, the issue whether he was
insane at the relevant point of time, has to be decided
against him.
The failure of À' to prove his insanity will not, however,

entitle the prosecution to succeed. Because in a criminal
trial, the legal burden of proof is always upon the
prosecution. It is the duty of the prosecution to establish the
guilt of the accused beyond reasonable doubt. The
prosecution, in order to succeed, must discharge that
burden of proof.
(ii) A is charged with having committed dacoity in Calcutta on

2nd January 1988. The plea of À' is that he was in Delhi on
2.1.88 at the time of the commission of dacoity.
À' is thereby raising what is known as àlibi'. Whether or not

he was in Delhi at the relevant time and date is a matter
within his special knowledge. Hence, by virtue of Sec. 106
Evidence Act, the evidential burden is upon him to prove
that alibi.
At the trial, A produces some evidence in support of his alibi,

but the court considers it insufficient and rejects the alibi of
the accused.
Inability of À' to prove his alibi will not, however, help the
prosecution to secure his conviction. The prosecution must,
by independent evidence, prove the essential elements of
dacoity and the complicity of À' therein. This duty of the
prosecution to establish the case is what may be described
as the Burden of proof in the first sense of the term.
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Note: "Alibi" means "elsewhere". It postulates physical impossibility of

the accused at the scene of crime by reason of his presence at
some other place.
6. Legal Burden of proof - determination
(a) The question on which party the legal burden of proof lies
has to be decided (i) on the state of the pleadings of the
parties and (ii) on the basis of the substantive law applicable
to the case.
(b) The essential elements of a claims or defence are determined

by reference to the substantive law.
(c) Example : À' sues `B' on a bond for recovery of a sum of

Rs.500/- with interest. His case is that `B' took a loan of
Rs.500/- and executed the bond in token thereof. `B' denies
all the material allegations of À'.
Here À' in order to succeed, must prove all the essential

elements of his claim.
But suppose `B' admits the execution of the bond by him

but alleges that the bond was contained by fraud, which À'
denies. In such event, the burden of proof shall be upon `B'
because if no evidence were given by either side, À' would
succeed, as the bond is not disputed and the fraud is not
proved.
7. Burden of proof - how to be discharged
(i) by production of evidence

(ii) by the assertion of presumptions
(iii) by reliance on admissions
(iv) by inviting the court to take judicial notice of certain facts
(v) by combination of two or more of these modes.
8. General principles of burden of proof
(a) The burden lies upon the party who asserts the affirmative of
a fact-in-issue.
(b) The burden lies upon the party who would fail if no evidence
were adduced.
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(c) A party who brings another person (his opponent) to the

Court must rely on the strength of his own case and the
clearness of his own proof.
(d) The legal burden of proof in a criminal case is always upon

the prosecution and there is no duty cast upon the accused
to prove his innocence.
(e) Burden of proof when the accused seeks to invoke any of the
general exceptions to criminal liability under chapter iv. of
the Indian Penal Code is upon the accused.
(f) Burden of proof may be shifted by presumption of a law or

fact.
9. Burden of proof - when it becomes immaterial
When the parties have led evidence and the relevant facts are before the
Court and all that remains for decision is what inference is to be drawn
from them, the question of burden of proof is not pertinent.
10. Standard of proof
(a) Standard of proof means the degree upto which the burden of
proof has to be discharged.
(b) In a sense, standard of proof indicates the extent of quality and

cogency of evidence that ought to be there for establishment of a
case.
(c) In a civil case, the standard of proof demanded is no more than a

preponderance of probabilities.
(d) In a criminal case, a higher standard of proof is necessary. The

prosecution must establish the guilt of the accused beyond
reasonable doubt.
(e) In exceptional situation, when the accused in a criminal case has

to discharge any burden of proof on an issue, the standard of proof
is the same as is required in a civil case, the preponderance of
probabilities.
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Claim of Privilege
1. Explanation of the topic
(a) The title of the topic consists of two words joined by the
preposition "of". They are (i) claim and (ii) privilege.
(b) "claim" means a demand of a right or supposed right.
(c) "Privilege" means an advantage conferred upon a person over and

above the ordinary law. It implies "immunity" "exemption" or "non-
liability".
2. "Claim of privilege" - its underlying principle
(a) Administration of justice demands disclosure of evidence.

Parties to a litigation should disclose, for the purpose of trial,
the evidence relevant to the issues involved which is or has
been in their possession or power. The idea is that
withholding of evidence by any of the parties to a legal
proceeding may lead to the failure of justice. Hence, they
have a duty to produce in court relevant and admissible
evidence.
(b) What has been stated in clause (a) above is the general rule.
It is based on "interest of Justice". This is, however, not an
absolute rule. (c) The public interest in the doing of justice
may sometimes come in conflict with another kind of public
interest, say, for instance, when disclosure of evidence is
prejudicial to the interest of the Nation. In such an event,
the interest of justice between the parties has to be
considered against a different public interest, which may be
more important.
(c) Upon balancing of the two rival public interests, the interest
of justice may have to be subordinated to a more demanding
public interest. This is the principle upon which the claim of
privilege is based.
(d) In this context, the "claim of privilege" signifies an assertion

by a party to be exempted from the disclosure/production of
evidence, oral/documentary, in connection with a legal
proceeding, without the risk of any liability being incurred.
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(e) A claim of privileges, in order to be worthy of being sustained

by the court, ought to be founded upon a rule
recognised by Law.
3. "Claim of privilege" where the related law is to be found?
To find where the law is, please turn to the Chapter IX of the
Indian Evidence Act and read Sections 121 to 131 in particular,
along with Sec. 132, 162, 163 and 165 of that Act.
4. Privileged Communication- its meaning
(a) It means a communication made to a witness which he cannot

disclose vide Section 121 to 129 I.E. Act.
(b) It actually implies the statement made to the witness earlier by

certain persons within a protected relationship, such as, husband
wife, lawyer client and the like, the withholding of which is
authorised by the Law.
5. Privileged document what it is?
Generally it refers to a document, concerning the affairs of the

State, which the State can not be compelled to produce in court
vide Sections 122 and 123 I.E.Act.
6. Privilege - who can claim and against what - an overview
(i)Judge or Magistrate can not be compelled to answer questions

relating to
(a)his own conduct in court as Judicial Officer
(b)anything which came to his notice in court as Judicial Officer,

Unless ordered by a superior court vide Sec.121.
(ii) (a)Communication made to a spouse by the other spouse during

marriage vide Sec.122.
(b)The communication need not be confidential. It may be of any

nature.
(c)The privilege is conferred upon the spouse who made the

communication.
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(d)The privilege may be waived by the spouse who made the

communication or her representative-in-interest. It must be by
express consent.
(e)Exceptions : The privilege is not available in suits between the

spouses or in prosecution for any crime committed by one spouse
against the other.
(iii) Privilege of the Government to withhold document vide

Sec.123.
(a) This privilege extends to any evidence derived from

unpublished official record.
(b) It must relate to the affairs of the State.
(c) It is available when disclosure of the contents of the

documents would be against public interest.
(d) The Head of the Department concerned may permit such

evidence to be produced. He may, in his discretion, withhold
such permission and claim privilege.
(e) The final decision in regard to the validity of a claim of

privilege against disclosure of evidence U/S 123 would
always be with the Court.
(f) A person summoned to produce a document is bound to

bring it or Send it to the court. He may then at the time of
production of the document, claim any privilege and
thereupon the court shall be called upon to determine the
validity of the objection vide Sec.162 I.E. Act.
(iv) Communication made to a public officer in official confidence vide

Sec. 124 I.E. Act.
(a) Sec. 124 I.E. Act relates to the disclosure of communication made
to a public officer in official confidence.
(b) The term "public officer" would include "clerks".
(v) A police officer or Magistrate or a Revenue Officer is not bound to

disclose the source of information as to commission of offence vide
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Sec.125 I.E. Act. This Section affords protection against the

disclosure of the name of the spy or informer.
(vi) (a)Professional communication made by a client to his barrister,

attorney, pleader or Vakil vide Sec.126 I.E. Act.
(b)Section 126 should be read in conjunction with Sec.127.
(c)Sections 126 and 127 are designed to afford protection to the

clients.
(d)Sections 126 and 127, which confer privilege on communication

between legal advisor and his client, contemplates a situation
when the legal adviser or his clerk figures as a witness in the
court.
(e)The privilege U/S 126 shall not be available in the two

circumstances mentioned in clauses (1) and (2) of the Proviso to
Sec. 126.
The privilege is available for act or offence committed prior to the

commencement of the employment of the lawyer.
(f)This privilege is not intended to cover communication made in

furtherance of any illegal purpose.
(g)This privilege does not apply to communication between lawyer

and the client when litigation arises between them and the
communication is relevant to the issue.
(h)To be privileged, the communication must be of a confidential or

private nature.
(vii) When the privilege may be deemed to have been waived has been
stated in Section 128 I.E. Act.
(viii) (a)Confidential communication with legal adviser is protected U/S

129. This Sec. presupposes a situation when the client is examined
as a witness in the court, whether or not he is a party to the
proceeding.
(b)Sec. 129 confers privilege upon the client's own testimony.
(c) It is founded upon the principle that if a party becomes a

witness of his own accord, he shall, if the court so requires it, be
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made to disclose everything necessary to the true comprehension

of his testimony and shall be bound to produce such confidential
writing or correspondence
as would be necessary for the said purpose.
(ix) Production of title deeds of witness not a party (Sec.130).
(x) Production of documents, which another person, having

possession, could refuse to produce (Sec.131).
Note : Sec. 130 relates to a witness who is not a party to the suit, that is
stranger. It refers to the title deed of the witness who is a stranger
to the suit.
Sec.131 refers to document of another person in possession of the

witness.
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ADMISSION AND CONFESSION
Reference : Sections 17 to 31 of the Indian Evidence Act.
(1) Admission - its legal definition
(a) This has been defined in the Indian Evidence Act which shall
henceforth be called "the Act".
(b) For the definition, you are to read Section 17, alongwith
Sections 18, 19, and 20 of the Act.
(c) In short, admission is -
(i) a statement, oral or documentary.
(ii) which gives rise to an inference.
(iii) about any fact in issue or relevant fact.
(iv) made by a party to the proceeding or by his authorised

agent or by some other person recognised under the
law.
(2) Admission - a judicial formulation
(a) Admission is a concession or voluntary acknowledgment.
(b) made by a party or someone identified with him in legal

interest.
(c) of the existence of certain facts.
(d) which are in dispute or relevant to an issue involved in the

case.
Vide Ayodhya Prasad Vs. Bhawani Shankar reported in AIR 1951

Allahabad -1
(3) Admission - examples
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(a) A sued B for recovery of a sum of Rs. 9,000/- alleging that B

had taken the amount from him by loan but did not pay it
back. B, by filing a written statement, denied that he took
loan of Rs. 9,000/- from A.
At the trial, A produced a letter of B, where he acknowledged

the debt and asked for time for repayment.
The question whether B took loan from A was a fact in issue

in that suit. The statement of B, as contained in his letter,
tended to establish that fact.
Such statement is an admission and is relevant under

Section 21 of the Indian Evidence Act.
(b)A was murdered at midnight at a place (p). B was arrested

with injuries on his person. B stated to the Doctor that A
had caused those injuries at the midnight at P. That
statement of B would amount to an admission establishing
his presence at the place of occurrence at the relevant time.
(4) Confession - what it is
(a) A confession is a statement, admitting in terms the offence

or in terms substantially all the facts which constitute the
offence (AIR 1966 Sec. 40).
(b) A confession is a total acknowledgment of the guilt.
(c) A confession is a statement made at any time by a person

charged with a crime stating that he committed that crime
(Stephen).
(5) Admission and confession - points of difference
(i) Admission is the genus whereas confessions is a species.
(ii) All confessions are admissions but all admissions are not
confessions.
(iii) "Confession" is applicable in the context of a crime only.

Admission, though generally employed in connection with
civil proceedings, is not confined in its application to civil
cases only. It may also be extended to criminal matters.
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(iv) When a statement, read as a whole, does not amount to a

clear acknowledgment of guilt, and as such, falls short of
confession, it may be used as an admission.
(v) Confession is generally used against the maker of it (accused

in a criminal case). In certain circumstances(vide Sec. 30 of
the Indian Evidence Act) it may be taken into consideration
as against a co-accused also.
Admission may be proved against the maker or his

representative-in-interest, but in cases falling within clauses
(1), (2) and (3) of Section 21 of the Indian Evidence Act, it
may also be proved by or on behalf of the maker.
(vi) In criminal cases, where conviction may be based on the

statement alone, it is confession but when some
supplementary evidence is needed to authorise a conviction
it is an admission (Ram Singh Vs. State of U.P. reported in
AIR 1959 Allahabad 518).
(6) Confession and Police
(a) A confession made to a police officer is inadmissible vide

Section 25 of the Indian Evidence Act.
(b) Section 27 is an exception to the prohibition imposed by

Section 25.
(c) If an accused, while in police custody, makes a statement,

that part of the statement, whether confessional or not,
which leads to the discovery of a material fact, may be
received in evidence under Section 27 of the Indian Evidence
Act.
(d) Section 27 is based upon the rationale that the discovery of

a material fact in consequence of the information given out
by the accused is, by itself, a guarantee of truth and hence,
the embargo placed by Section 75 ought to be relaxed.
(e) Examples of discovery of material facts -
(i) a blood -stained dagger;
(ii) a revolver used for commission of crime;
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(iii) body of the deceased in a case of murder;
(iv) ornaments the deceased was wearing.
(7) Confession - its relevancy and admissibility
(a) A confession made by an accused under threat, inducement

or promise made to him by a person in authority is not
relevant (for details, see Section 24 of the Act).
(b) A confession made to a police officer is inadmissible vide

Section 25. Section 27 is, however, an exception to Section
25.
(c) A confession made by an accused while he is in police

custody can not be proved against him, unless he made it in
the immediate presence of a Magistrate. Such restriction has
been imposed by Section 26. It should, however, be noted
that Section 27 is an exception also to Section 26.
(d) In short, a confession, in order to be relevant and

admissible, should be free and voluntary, not tainted by
threat, inducement or promise and not vitiated by police
influence.
(8) Confession - Classification
(a) It is of two kinds, namely (i) Judicial Confession and (ii)

Extra-Judicial Confession.
(b) Judicial confessions are those which are made before a

Magistrate or in court in course of legal proceedings.
NOTE :
(i) A confession recorded by a Metropolitan Magistrate or a

Judicial Magistrate, First Class, under Section 164 Cr. P.C.
is a judicial confession.
(ii) Section 164 Cr. P.C. applies to the stage of police

investigation. During inquiries/trials, accused may be
examined by the Court under Section 313 Cr. P.C. in
accordance with Section 281 Cr. P.C.
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(c) Extra Judicial Confessions are those made to or before

persons or group of people other than before Magistrate or in
Court.
Example : A dacoity was being committed. The villagers assembled near

the house of occurrence on being attracted by the hue and
cry. As soon as the dacoits came out of the house, they were
given a chase by the villagers. One of the dacoits was
apprehended by the villagers.He admitted before the villagers
that he had taken part in the dacoity. That admission of guilt
by him before the villagers was an extra-judicial confession.
(9) Confession - its evidentiary value
(a) A judicial confession - if found to be true and voluntary, may

form the sole basis of conviction.
(b) Confession of an accused is, therefore, a substantive

evidence.
(c) As a rule of prudence, the Court looks for corroboration in

support of a confession. The extent and nature of
corroboration that may be required will depend upon the
facts and circumstances of each case.
(d) If the Court is satisfied that the confession is perfectly

voluntary and wholly true, the question of corroboration will
not arise.
(e) Extra-Judicial Confessions are distinguished from judicial

confession even for the purpose of evidentiary value.
(f) An extra-judicial confession should be examined with greater

care and caution.
(g) Extra-Judicial Confessions are generally not rated as high as

the judicial confessions.
(h) It is, however, not correct to start with the presumption that
extra-judicial confessions are a very weak type of evidence.
Its value depends upon certain factors.
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(i) An extra-judicial confession, if believed and if found

voluntary, can form the basis of conviction at a criminal
trial.
(j) When an extra-judicial confession is proved by an

independent witness and is corroborated by recovery of
incriminating articles, a conviction may be founded upon it.
(k) Ultimately, it is a question of appreciation of evidence, the

result of which will determine how much value is to be given
to a particular confession.
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DYING DECLARATION
(1) Dying Declaration - what it is ?
It is the statement, oral or written of a person, relating to his/her

death or as to the circumstances leading to his/her death, when
that person dies subsequent to the making of such statement.
(2) Nature of the Dying Declaration
(a) It is the statement of a person since deceased.
(b) When proved, it may be used, as evidence.
(c) It is a kind of hearsay evidence, because the declarant

(maker of the statement) has died and somebody else
appears to say what the deceased stated about his/her
death.
NOTE:- "Hearsay Evidence"- in this context- means "derivative or

second-hand or unoriginal evidence", that is , the evidence
given by a person, not on this basis of his own knowledge
but on the authority of another person.
(d) The declarant, being dead, the veracity of his/her statement

cannot be tested by cross-examination.
(e) Even then, it is received in evidence and as such, it is an

exception to the rule that hearsay evidence is inadmissible
(vide section 60m of the Indian Evidence Act).
(3) Why Dying Declaration is admitted in Evidence?
(a) It is based on the principle of "necessity".If it is shut out, not

better evidence may be available. In such event, Justice is
Liable to be defeated.
(b) The other ground may be described as "circumstantial

guarantee of trustworthiness". The presumption is that truth
sits on the lips of dying person. The shadow of impending
death creates an awful and solemn condition, which silences
any motive for falsehood and which provides a substitute for
oath.
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The fear of divine displeasure may be present in his/her mind.
(4) Relevancy and admissibility of Dying Declaration
(a) Section 32 (1) of the Indian Evidence Act declares that

"Dying Declaration" is relevant.
(b) Evidence may be given of facts in issue and also of relevant

facts (vide Section 5 of the Indian Evidence Act)
(c) There is no prohibition, either express or implied, in the

Indian Evidence Act, against `Dying Declaration' being
received in evidence.It is, therefore, admissible.
Note:- Admissibility presupposes relevancy and something more. In

order to be admissible, a fact should be relevant under any of the
provisions contained in Sections 6 to 55 of the Evidence Act and at
the same time, there ought to be nothing in Law to exclude its
reception in evidence.
Dying Declaration satisfies both these conditions and hence, it is

relevant and admissible.
(5) Conditions for reception of Dying Declaration in evidence
(a) It must relate either to the cause of death or to any of the

circumstances of the transaction which has resulted in the
death.
(b) Here, the death means the death of the declarant himself or
herself.
(c) The declarant must have died after the declaration.
(d) The cause of death of the declarant must be a question

involved in the case.
(e) The death may be homicidal or suicidal or even accidental.
(f) The case may be criminal or civil.
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(6) Apprehension of death - is it a pre-requisite ?
No, it is not the requirement of the Indian Law that the person
making the Dying Declaration should have been under expectation
of death at that point of time.
(7) Proximity of time between declaration and death - is it

essential ?
(a) Distance of time alone can not render a dying declaration

irrelevant.
(b) It would depend upon the circumstances of each case.
(c) When letters had been written or statements made by the

deceased, which were directly connected with or related to
his or her death, they would certainly fall within the four
corners of Section 32 of the Indian Evidence Act, even if
there was "not short" time-gap between such
letters/statements and death of the writer/maker thereof.
Example :- Letters written by a married woman to her mother alleging

cruelty committed by her husband and incitement given by
him for her suicide in a case of dowry death.
Reference - Sharad Birdichand Vs State of Maharashtra reported in

1984 CrLJ 1738 or AIR 1984 S. C. 1622.
(8) Who may record "Dying Declaration" ?
(a) Generally speaking, it may be recorded by anybody,

including a Police Officer or a private individual.
(b) Law has not indicated who is competent or who is

incompetent to record "Dying Declaration".
(c) Admissibility is one thing, credibility is another.
(d) What has been said in clause (a) above is true from the angle
of admissibility but it does not hold good from the view-point
of credibility.
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(e) A Magistrate inspires greater confidence and deserves more

credence. Hence, efforts should be made to secure the
services of a Magistrate for recording of a Dying Declaration.
Note (i) Magistrate may be a Judicial Magistrate or an Executive

Magistrate.
Note(ii) In practice, Judicial Magistrates are called upon to hold T.I.

Parades and Executive Magistrates are invited to record
dying declarations.
(f) In absence of a Magistrate, a doctor, if available, may be

requested to take down the dying declaration.
(g) A Police Officer is not disqualified for recording of a Dying

Declaration.
(h) Dying Declaration has been exempted from the restriction,

which otherwise attaches to a statement recorded by a Police
Officer, in course of investigation (vide Section 162 Cr. P.C.).
(i) In other words, a dying declaration, though recorded by a

Police Officer, is not hit by Section 162 Cr. P.C. and is
admissible in evidence.
(j) The practice of the Investigating Officer himself recording the

dying declaration, without exploring the possibility of the
availability of a Magistrate, ought not to be encouraged.
(k) It is, however, not a hard and fast rule that a Dying
Declaration recorded by a police officer, when there was
facility for having it recorded by a Magistrate, must
necessarily be rejected. It depends upon the facts and
circumstances of each case.
Authority:
(i) Surinder Kumar Vs. State (Delhi Administration reported in

(1987) 1 Crimes 250 (S.C.)
(ii) State of Punjab Vs. Amarjit Singh reported in 1989 Cr. LJ 95

vide para 18.
(9) Dying Declaration - when may be made
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Dying Declaration may be made before or during investigation.
(10) Procedure for recording of a Dying Declaration (assuming that

the person recording it is a Magistrate ) :-
(i) Be satisfied that the proposed declarant is in a fit condition

to make a statement. He should be in senses.
(ii) If a doctor is available, ask for his opinion on point Number

(i). He is the best person to opine as to that matter.
(iii) Otherwise, have a close look at the general condition of the

dying person and put to him simple questions to ascertain
whether he is in a position to make conscious statement
with normal understanding.
(iv) Once you are satisfied on the point of fitness of mind,

proceed to take down the statement.
(v) Do it in the form of questions and answers (Not in narrative).
(vi) Don't ask any leading question.
(vii) Put simple questions, other than in leading form, in the

language he understands.
(viii) Record his replies in vernacular exactly in his own words -

verbatim reproduction.
(ix) If you understand the language used by him but can not
write it, then render it faithfully into English or the Official
Language of the State.
(x) After the statement has been recorded, read over and explain
it to the declarant.
(xi) If he affirms that it has been correctly recorded, take his

signature or thump impression, as the case may be.
(xii) Affix your signature with your designation, date and time.
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(xiii) Obtain a certificate from the doctor as to the fitness of the

declarant by getting it endorsed in the Dying Declaration
itself under his dated signature, at an appropriate place,
whenever he has been consulted and is present. If no doctor
is there, it is for you (the Magistrate) to append a certificate
to the effect that the Declaration was conscious and in a fit
condition to make statement.
(xiv) At the top of the dying declaration, don't forget to note down
the name and other particulars, such as Father's or
Husband's name, and address of the declarant and also the
date, time and venue of the Dying Declaration.
(xv) Put the Dying Declaration in an envelope, get it sealed in

your presence and forward it to the CJM, SDJM or JM
having jurisdiction, as early as possible.
(xvi) Always remember that the object of taking the dying

declaration from a dying person is to ascertain the cause of
his/her impending death or the circumstances of the
transaction which may result in his/her death.
(xvii) If he/she names any assailant, take from him/her such

particulars as may establish the identity of the assailant.
(xviii) Take such steps, as the circumstances may permit, to

exclude the possibility of tutoring/prompting and to
remove any outside influence. The statement should be
his/her own in its entirety - free, voluntary and untainted.
(xix) Please bear in mind that there is no prescribed form for

dying declaration.
(11) Dying Declaration - need for scrutiny by the Court
As a dying declaration is taken in absence of the accused and the

declarant, being dead, can not be cross-examined, the dying
declaration should be subjected to the strictest scrutiny and
closest circumspection by the court.
(12) Points to be considered by the Court in assessing the

probative value of a Dying Declaration :
(a) Did the declaration have sufficient opportunity of seeing the

assailant?
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(b) Whether the capacity of the declarant to remember facts

stated by him was impaired at the time of his making the
statement by circumstances beyond his control, either due
to the nature of injuries or for any other causes?
(c) Whether the statement was made at the earliest

opportunity?
(d) Whether the declarant was conscious and in a condition fit

to make statement?
(e) Whether there was any scope for tutoring/ prompting/

outside influence operating on the mind of the declarant?
(f) Did the declarant have any hostile bias or enmity as against
any of the assailants named by him?
(g) Was the dying declaration coherent and consistent?
(h) Did the Dying Declaration suffer from any inherent

infirmity/ improbability?
(13) Dying Declaration - may be oral or written
(a) A dying declaration is generally reduced to writing but it may

also be oral.
(b) The exact words uttered by the declarant are required to be

proved when the Dying Declaration has not been
documented.
(c) In case of oral dying declaration, proof of it becomes difficult,

because the witnesses can hardly be expectedto remember
what the declarant actually said.Their memories are likely to
fade.This is not to suggest that an oral dying declaration can
not be proved or relied upon.
(d) An oral dying declaration, which has been duly proved by

independent and reliable witnesses, may be acted upon.
(14) Proof of Dying Declaration
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(a) A dying declaration may be proved by the person who

recorded it (usual mode of proving a written
dyingdeclaration).
(b) When oral, it may be proved by any person who heard the
declarant making the statement u/s 32 (1).
(c) If the original written dying declaration is shown to have

been destroyed or lost, it may be proved by the Production of
secondary evidence. (vide Sections 63 and 65 of the Indian
Evidence Act).
NOTE:- A Written dying declaration is a document within the meaning

of Section 3 of the Indian Evidence Act, which includes a
definition of the term "document".
(15) Evidentiary value of Dying Declaration
(a) As indicated earlier, the Dying Declaration should be

subjected to strictest scrutiny.
(b) If after such scrutiny, the Court is satisfied that the Dying
Declaration is truthful and reliable, it may be acted upon
without corroboration and it may form the sole basis of
conviction in a criminal trial.
(c) The Dying Declaration is a substantive evidence and the

finding of a Court of Law may be founded upon it, provided
that it is founded true and worthy of credit.
(d) If upon scrutiny, the court is not inclined to accept the Dying
Declaration as wholly reliable and fully truthful, it may look
for corroboration.
(e) Such corroboration may be provided by circumstantial

evidence, expert testimony and oral evidence of witnesses
unconnected with the Dying Declaration.
(f) While the principles indicated above apply to the Dying

Declaration recorded by any person including a Magistrate,
an additional safeguard is required to be taken when the
Dying Declaration has been taken down by a police officer.
In such case, Dying Declaration recorded by the Police ought
not to be taken into account unless and until it is explained
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to the satisfaction of the Court as to why the better method

of having it recorded by a Magistrate was not adopted.
(g) If the dying declaration appears to be tainted or the result of

tutoring or product of rancor, or suffers from inherent
infirmity, it is liable to be rejected.
(h) Corroboration is not essential, when the Dying Declaration

commends itself to be fully truthful and wholly reliable.
(i) If a part of the dying declaration is false, it is not necessary

that the Dying Declaration must be discarded in its entirety.
(j) The dying declaration recorded by a police officer, if believed,

can be relied upon for conviction.
(k) Each case must be determined on its own facts, keeping in

view the circumstances in which the dying declaration was
made.
(16) Dying Declaration when the victim survives:
(a) If the victim chances to live, his/her statement can not be

used as a Dying Declaration.
(b) In such events, it may be used as previous statement for the

purpose of contradiction, u/s 155/145 Evidence Act or for
corroboration u/s 157 Evidence Act.
(c) A dying declaration recorded by a Police Officer, when the

victim survives, may be used for the purpose of contradiction
only.
(17) Illustrative Cases :
(a) The cow of À' was detained by `B' in his house. À' told his
wife that he was going to the house of `B' to take back his
cow.
In the house of `B' a quarrel ensued between `B' and À' in

course of which `B' stabbed À'.
À' succumbed to the injury. The statement made by À' to

his wife is admissible u/s 32(1) Evidence Act, because it
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related to one of the circumstances of the transaction which

resulted in his death.
(b) There was illicit intimacy between `M' a man and `W', a
woman, who were not related as husband and wife.
`W' became pregnant as a result of such illicit connection.
`W' stated to her friend, `F', that here pregnancy was caused
by `M' and that `M' was trying to do away with her.
Later on, `W' was poisoned to death by `M' in order to avoid a

scandal.
The statement made by `W' to `F' is relevant u/s 32(1), as it

related to the circumstances leading to her death.
(c) À' was seriously injured in a railway accident.
He made a declaration as to the cause of his injury holding

the Railway Company responsible for negligence.
He died from the effect of such injury.
His wife filed a suit for damages for death of her husband
due to negligence of the Railway Company.
In that civil suit, the declaration of À' as to the cause of his

death was admitted in evidence u/s 32 (1) of the Evidence
Act.
(d) À' was stabbed in his abdomen. He was in severe bodily

pain, though fully conscious. He was about to die.
A Police Officer recorded the statements of À'.
À' stated that he was stabbed by `B'.
It was very brief.
À' died shortly.
At the trial of `B' on a charge of murder of À'; the dying

declaration was proved by the Police Officer.
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The dying declaration was challenged by the defence on two

grounds :-
Firstly, it was recorded by a Police Officer.
Secondly, the dying declaration was very brief.
Both these contentions were rejected by the Court.
Reasons :-
i. (a) There is no requirement of Law that a dying declaration

must necessarily be made to a Magistrate.
i. (b) A Police Officer is not legally incompetent to record a dying

declaration.
i. (c) In the circumstances of the case, there was no time to call a

Magistrate.
i. (d) The death of À' was so imminent that the Police Officer was
fully justified in recording his dying declaration without
wasting time in search of a Magistrate.
i. (e) The dying declaration was not vitiated in any way and as
such, it was entitled to be given due weight.
ii (a) When À' was in severe bodily pain, his natural impulse
would be to tell, without wasting his breath on details, as to
who stabbed him.
ii (b) The very brevity of the dying declaration, in the

circumstances of the case, far from being a suspicious
circumstance, was an index of its being true and free from
taint of tutoring.
(e) `W', a married woman, died of burn injuries.
The incident took place on 10th April.
She was alive upto 18th April.
She met the villagers, who appeared on the scene just after
the occurrence and took her to the hospital. She did not
make any statement implicating her husband, either to any
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of the villagers or to the doctor or the nurse attending on

her.
It was only on the 18th April when she met her uncle that
she disclosed for the first time that her husband sprinkled
kerosene oil and set heron fire.
Later on, she repeated that statement to the Magistrate, who

recorded her dying declaration.
At the trial where the husband was an accused, the dying

declaration was tendered in evidence.
The Court refused to rely upon that dying declaration.
The consideration which weighed with the court is that it is

notoutside the realm of probability that her statement may
have been inspiredby her uncle and therefore, it will not be
safe to base the conviction of the husband on such a dying
declaration.(AIR 1983 SC 274)
(f) `W', a married woman, died an unnatural death under

suspicious circumstances.
She was writing letters to her mother over a period of two

years prior to her death alleging demand may by her
husband for additional dowry, ill-treatment and torture
inflicted upon her by him and also of threats held out to her
by him that she would do away with her, if his demand was
not met.
Allthoseletters are admissiblein evidence u/s 32(1) of the

Evidence Act as Dying Declarations.
Reasons:-Here, death was a logical culmination of a

continuous drama of the story, the statement regarding each
step directly connected with the end of the drama, and as
such, would be admissible.
Such statements come to light only after the death of the

unfortunate wife.
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The test of proximity can not be too literally construedand

practically reduced to a cut and dried formula of universal
application to be confined in a straight-jacket.
(The reasons are based on the propositions propounded by

the SupremeCourt in Sharad vs State of Maharashtra reported
in AIR 1984 SC 1622)
NOTE:- A suicide note may be accepted as dying declaration

u/s 32(1) of the Indian Evidence Act.
(g) À' was stabbed by `B'.À' stated to a Magistrate that it was the `B's
hand which inflicted the injury on his person.
À' was also sufferingfrom cardiac ailments.

À' died.
The clear finding of the Doctor was that the death of À' was not
due to the injury but on account of heart failure, which was
independent of the injury.
The statement of À' to the Magistrate was not regarded as dying

declaration, because his death had no nexus with the injury and
hence, his statement did not relate to the cause of his death.
Section 32(1) of the Indian Evidence Act was not attracted to the
facts of that case.
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APPRECIATION OF EVIDENCE - an outline
I. APPRECIATION OF EVIDENCE - WHAT IT MEANS ?
1. It is a matter of experience, common sense and knowledge of

human affairs.
2. It is left to the discretion of the Judge/Magistrate.
3. Weighing evidence and drawing inferences.
4. Possible effect of evidence upon the minds of the Judge/

Magistrate.
II. EVIDENCE - WHAT IT IS ?
Evidence: It means all the legal means, exclusive of argument

which tends to prove or disprove any fact the truth of which is
submitted for judicial determination.
It is the instrument by which the court is convinced of the truth or

other wise of the matter under trial.
III. DUTY OF THE JUDGE OR MAGISTRATE
1. Application of the mind to the material on record and

arguments of both sides.
2. Discussion of the evidence and its evaluation.
3. Consideration of the contentions of the parties.
4. Findings on issues.
5. Reasons for decisions.
6. Reliefs granted.
IV. WHAT MATTERS ARE BEFORE THE COURT WHICH MAY BE

CONSIDERED
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1. Material objects.
2. Demeanour of the witnesses.
3. Local Inspection by the Judge.
4. Answer given by the accused u/s 313 Cr.P.C.
5. Confession made by a prisoner u/s 30 Evidence Act.
6. Admissions made in the pleadings.
14 7. Oral and documentary evidence.
V. WHAT THE JUDGE OR MAGISTRATE SHOULD BEAR IN MIND ?
1. The respective cases of the parties.
2. Points in controversy
3. Facts admitted need not be proved
4. Consideration of the matters before the court including the

statements of witnesses and the documents produced.
5. Who has the burden of proof?
6. What presumption, if any, applies?
7. When corroboration is required ?
8. Which facts are beyond dispute?
9. Which version is more probable?
VI. CLASSIFICATION OF WITNESS
1. Wholly reliable
2. Wholly unreliable
3. Neither wholly reliable nor wholly unreliable.
VII. KINDS OF WITNESSES
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1. Eye-witness
2. Post-occurence witness.
3. Formal witness
4. Expert witness
5. Independent witness.
6. Interested witness.
7. Partisan witness
8. Chance witness
9, Hostile witness
10. Pocket or stock witness
11. Trap witness
12. Seizure witness
13. Rustic witness
14. Solitary witness
15. Won over witness
16. Child witness
17. Woman witness
18. Related witness
19. Police witness
20. Official witness
21. Approver as a witness
22. Accused as a witness
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23. Party as a witness
24. Convict as a witness
25. Prosecutor as witness
VIII. DEMEANOUR OF WITNESS
1. His hesitations
2. His doubts
3. His tone
4. His accent
5. His variations
6. His confidence
7. His calmness
8. How he is affected by questions.
9. His evasiveness
10. Is he frank or suppressive ?
IX. OBJECT OF APPRECIATION OF EVIDENCE
1. To separate the grain from the chaff.
2. To disengage the truth from falsehood.
3. The truth or false hood of testimony depends upon motives

or balance of the motives operating upon the mind of a
witness.
X. ASSESSMENT OF T HE CREDIBILITY OF A WITNESS
1. His character
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2. Extent and manner of his interestedness.
3. How he fared in the cross-exam
4. Whether the story told by him is probable ?
5. Does his testimony conform to the admitted or established

facts?
6. His animus
7. His demeanour
8. Intrinsic worth
XI. INTERFACE
1. Presiding Officer, (Judge/Magistrate)
2. Court staff including Bench Clerk
3. Litigants
4. Lawyers
5. Law clerks
6. Witnesses
7. Prosecutors
8. Accused.
9. Spectators
10. Police officials
11. Professional sureties
12. Touts
XII. FUNCTION AND QUALITIES OF AS JUDGE OR MAGISTRATE
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Function
1. To settle dispute
2. To adjudicate
3. To grant relief
Qualities
a)Civility
b)Rectitute
c)Impartiality
d)Fairness
e)Propriety
f)Openness
g)Socially sensitized
h)Active in securing justice
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EVIDENCE - PART- II
I. Contents of document -
How to prove?
:
By primary evidence By secondary evidence

which the law requires to which the law permits
be given first document to be given in absence
itself of primary evidence
after due explanation
II. How to prove hand - Writing :
(1) by the testimony of the person who wrote the document.
(2) by the evidence of the person in whose presence the

document was written.
(3) by calling a person as witness who is familiar or acquainted

with the handwriting in question.
(4) by an expert on comparison.
(5) by the admission of the part against whom the document is

sought to be used.
Note :
(a) A court has power to compare writing including

signatures.
(b) A court has power to direct a person to give
handwriting signatures (see 73 I.E. Act.)
III. Photographs - how to prove
(1) The photographer should be examined.
(2) He should depose as to taking of photographs and

developing them into negatives.
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(3) The negatives are to be produced and proved in the first

instance.
(4) No print or enlargement is admissible without the negatives

being exhibited first.
(5) The positive print or enlarged print may be proved by the

person preparing the same.
(6) Accuracy of the photograph is to be established on oath by

the photographer or some one who can testify as to it.
IV. Tape- record : Conditions for admissibility.
(1) The statement recorded is relevant according to the Rules of

evidence.
(2) The voice is identified.
(3) The time, place and accuracy of the voice are proved.
(4) Possibility of tampering or erasure is ruled out.
(5) The voice should be clearly audible.
(6) The recorded cassette is sealed and kept in safe custody.
Note : Evidence of tape-recorder must accepted with caution.
V. Certain Powers of the Court under the Indian Evidence Act.
(1) Court to decide when question shall be asked and when

witness shall be compelled to answer.
Section 148 I.E. Act.
(2) Question not be asked without reasonable grounds.

(3) Procedure of Court when question being asked without

reasonable grounds.
(4) Court may forbid indecent and scandalous questions.
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(5) Court shall forbid question intended to insult or annoy.

(6) Court may put questions, relevant or irrelevant to any

witness at any time or order production of any document or
thing.
VI. Duty of a lawyer - five fold
a) To client
b) To court
c) To society
d) To opposite party
e) To himself
VI. Court and Lawyer - Co-relationship.
1) An advocate is an officer of the court.
2) He is not subordinate to court.
3) Co-operation between the Bench and the Bar is a must.
4) he shall maintain towards the court - a respectful attitude

bearing in mind that the dignity of a Judge or Magistrate is
essential for the survival of a free society.
5) While it is the duty of an advocate to maintain dignity, he

should not be servile.
6) There is no guarantee of justice except the personality of the

Judge or the Magistrate.
VII. How to control an unruly lawyer ?
a) Professional misconduct : Rules framed by the Bar Council

under the Advocate Act.
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b) Contempt :
Under Sec. 346 Under Contempt

345, of Court Act.
Cr. P.C.
c) It is better to use moral authority than legal authority.
d) To report to the High Court or other authority as envisaged

in Sec. 150 of the Indian Evidence Act.
VIII. How to control recalcitrant Police Personnel.
Administrative Legal
1) Write letters to 1) Section 29 Police Act.
SP/DIG/IG/DG
2) Meeting of Co-ordination 2) In case of non- attendance by

Committee DJ/DM/SP/CJM police witness Sec. 350 Cr. P.C.
3) Provision of Chapter X IPC may

15 also be applied in appropriate
cases.
4) Contempt of Courts Act.
5) Contempt u/s 345 Cr. P.C.
IX. Recording of Evidence by the Court- There are three modes as

indicated below:
1) Question and answer form.
2) Narrative form.
3) Memorandum of substance of evidence.
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AFFIDAVIT
1. Affidavit: What it is?
16 (a) It is a statement or a declaration in writing.
17 (b) Made under oath or on affirmation.
(c) Before a Court, Magistrate or Officer having authority to

administer oath or affirmation.
2. Who has the power to administer oath or affirmation ?
(a) The answer may be found in Section 3 of the Oaths Act (Act
44 of 1969).
(b) All Courts or persons having by law or consent of the parties,

authority to receive evidence, may administer oath or
affirmation.
(c) Any Court, Judge, Magistrate or person may administer

oaths and affirmations for the purpose of affidavits, if
empowered in this behalf :
i) by the High Court in respect of affidavits for the

purpose of judicial proceedings.
ii) by the State Governments, in respect of the other

affidavits.
3. Form of oath/affirmation in case of affidavits.
“I do swear in the name of God

solemnly affirm that this is my name and signature (or mark ) and
that the contents of my affidavit are true.”
(Reference Schedule to Oaths Act, read with Sec.6 thereof.)
4. Authorities before whom affidavits may be sworn for the

purpose of being used under the Code of Criminal Procedure.
(Vide Sec.297 Cr. PC.)
(a) Any Judge or Judicial or Executive Magistrate.
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(b) Any Commissioner of Oaths appointed by the High Court or Court

of Session.
Or
18 Any notary appointed under the Notaries Act, 1952 (Act 53 of 1952)
5. Affidavits under the Cr. PC.) may contain:
(a) facts based on personal knowledge of the deponent.
(b) facts founded upon belief of the deponent and the grounds of such
belief.
(Reference Sec. 297 Cr. PC.)
6. When evidence may be given by affidavit at any trial or inquiry

under Cr. PC :
(a) When the evidence is of a formal character, as for example,

evidence of a person who took specimen fingerprint of an accused
(vide Sec. 296 Cr. PC)
(b) When allegations against a Public Servant are made (Sec. 295 Cr.
PC)
(c) An application for transfer of a case ought to be supported by

affidavit (Vide Sec.. 407 (3) and 408(3) Cr. PC)
(d) When affidavit evidence is tendered the opposite party may file
counter-affidavit.
(e) The Court may, if it thinks fit, call the deponent for examination
as to the facts contained in the Affidavit.
(Reference : Sec. 296 Cr. PC)
6. Affidavits under the Code of Civil Procedure.
(a) Sec. 30(c) C.P.C. provides that the court may order any fact to be
proved by affidavit.
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(b) This is, however, subject to such conditions and limitations as

may be prescribed.
(c) In this context, reference should be made to order 19 C.P.C.
(d) Affidavits may be filed in the following matters before a Civil

Court.
i) Affidavit in answer to interrogatories (vide Order 11 Rules

8 and 9 C.P.C.)
ii) Affidavits in Discovery and inspection (Vide Order 11

Rules 13 and 15 C.P.C.
iii) Admission may be made on affidavit.
iv) Affidavit for interlocutory matters, as for example:
(a) Attachment before judgement order 38 rule 4 C.P.C.
(b) Temporary injunction Order 39 Rule 1 C.P.C.
8. Affidavit and the Indian Evidence Act.
(a) The Indian Evidence Act does not apply to affidavits presented to
any Court or Officer.
(b) Affidavit is not evidence under the Indian Evidence Act. If a fact
is allowed to be proved by affidavit by C.P.C., Cr. P.C. or any
other law, it can be proved by affidavit notwithstanding the
provision of the Indian Evidence Act vide 1955 Cr. L.J. 1451.
7. Who may administer oath for the purpose of swearing affidavits

under the Civil Procedure Code (Vide Sec. 139 C.P.C.).
(a) The Indian Evidence Act does not apply to affidavits presented to
any Court or Officer.
(b) Affidavit is not evidence under the Indian Evidence Act. If a fact
is allowed to be proved a affidavit by C.P.C., Cr. P.C. or any other
law, it can be proved by affidavit notwithstanding the provision of
the Indian Act vide 1995 Cr. L.J. 1451.
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8. Who may administer oath for the purpose of swearing affidavits

under the Civil Procedure Code (Vide Sec. 139 C.P.C.)
(a) Any Court or Magistrate.
(b) Any Notary appointed under the Notaries Act., 1952.
(c) Any Officer or other person whom a High Court may appoint in
this behalf.
(d) Any Officer appointed by any other Court which the State
Government has generally or specially empowered in this
behalf.
9. Affidavit - What the Magistrate, empowered to administer Oaths/

affirmation, should bear in mind.
(a) Affidavit should contain facts personally known to the deponent

or it may be based on information from a source which be
believes to be correct. The grounds of belief should be stated.
(b) The contents of the affidavit must be read over to the deponent
in a language which be understands and vouched by him to be
correct (1975 Cr. L.J. 948 (950).
(c) Affidavits must be properly verified and must clearly state what
is based on knowledge and what is on belief. (1963 (I) Cr. L.J.
512 and AIR 1987 SC 294).
(d) The Magistrate must satisfy himself about the identity of the
deponent and that the deponent had owned the statements
contained in the affidavit.
(e) The endorsement in the affidavit should show that the essential
formalities had been observed by the Magistrate attesting the
affidavit.
(f) Seal of the Magistrate, before whom the affidavit is sworn,

should be affixed.
(g) The affidavit should bear stamp as required under the Law.
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(h) Scandalous matter should be avoided in an affidavit as far as

possible.
(i) When the matter is both scandalous and irrelevant, it may be

struck out from the affidavit.
(j) The deponent is responsible for making precise and accurate

statements in affidavit and the part or the role assigned to the
person entitled to administer oath is no less sacrosanct (AIR
1985 SC 28).
10. Affidavit- evidentiary value
(a) Unless Law recognizes proof of a fact by affidavit, affidavit

evidence is inadmissible, say for instance, actual possession
u/s 145(4) Cr. P.C. can not be proved by affidavit.
(b) If the deponent does not produce himself for cross-

examination in answer to a demand by other side, the
affidavit loses all its value (1955 Cr. L.J. 1451).
(c) If affidavits are conflicting, deponents should be summoned

for cross-examination to ascertain the truth (AIR 1965 SC
1303).
(d) Contempt proceedings before the Supreme Court or the High

Courts are generally decided on the basis of affidavits (AIR
1955 All. 638).
(e) Writ petitions may be decided on affidavits and counter-

affidavits. If necessary, the Supreme Court or the High
Court may order inquiry into alleged facts (1964 SC 1625) or
permit cross-examination of the deponent on either side (AIR
1967 SC 295 and AIR 1950 SC 27 (67).
(f) General principles of appreciation of evidence shall apply as

far as possible, to the affidavit evidence, when it is receivable
in evidence.
(g) Vague denial in counter-affidavit of an assertion made in the

affidavit is no denial.
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11. Affidavit and Prosecution
(a) Law enjoins that persons making statements on oath or

solemn affirmation speak the truths.
(b) To file a false affidavit is a serious wrong and the person who
does so can not be said to have respect for sanctity of oath.
(c) A person who binds him on oath to state the truth is bound
to state the truth.
(d) Filling false affidavit in a Court in proof of a fact relevant to

the judicial proceeding, where affidavit evidence is
admissible, is an offence as defined in Section 191 I.P.C.,
which is known as perjury and which is punishable u/s 193
I.P.C.
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Readings in Law
PRESUMPTIONS - AT A GLANCE
I. Proof of a Fact and Presumption
A fact may be proved by any or the following means or a combination

of two or more of them.
1) By production evidence.
2) By relying on admissions, which may be found in evidence or in

pleadings or otherwise (matters before the Court).
3) By invoking the aid of presumption.
4) By taking assistance from the matters before the Court (other

than evidence such as demeanour of a witness).
5) By combination of two or more of these modes.
II. Presumption
Simply speaking, presumption is an inference. Basically it is of

two kinds :
1) Presumption of fact
2) Presumption of law
III. Here, reference should be made to Section 4 of the Indian

Evidence Act. In the context of a Court making presumptions,
three different expressions have been used, namely,
i) "May presume",
ii) "Shall presume",
iii) "Conclusive proof"
IV. When the Court may presume or shall presume or accept it as

conclusive proof is given below in a tabular form:
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May presume Shall presume Conclusive proof
Sec. 86 S. 79 S. 41
Sec. 87 S. 80 S. 112
Sec. 88 S. 81 S. 113
Sec. 90 S. 82
Sec. 114 S. 83
Sec. 113A S. 84
S. 85
S. 89
S. 105
S. 111A
S. 113B
S 114 A
V. Examples of Presumption
1. If ornaments of the deceased woman are found in possession of a

person, soon after the murder , a presumption of guilt may be
made.
2. If the accused was found soon after the theft in possession of a

large number of stolen articles, if may be presumed that he was
either the thief or the Receiver of stolen properties.
3. An accused is presumed to be innocent unless his guilt is

established beyond reasonable doubt.
4. Judicial and official acts may be presumed to have been regularly

performed.
5. The evidenec, which could be and is not produced, would, if

produced, be unfavourable to the person who withholds it.
V. Facts judicially noticeable need not be proved. (Sec. 56 Indian

Evidence Act)
Examples
1. Historical Facts
2. Geographical Facts
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3. Scientific inventions
4. Socio-economic conditions
5. Price hike.
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Case Study No. 1
PROMOD MAHAJAN & OTHERS (APPELLANT)

VS.
STATE OF BIHAR (RESPONDENT)
Reported in AIR 1989 Supreme Court 1475
In this case, four appellants before the Supreme Court, had been
the accused No. 1 to 4 before the Sessions Judge who tried them. The
case of the prosecutions was as follows:
The accused No. 1 to 4 and some other persons entered the house
of the victims. The accused No. 1 to 4 first committed rape on Jaiboon
Nisa, an unmarried girl aged about 15 or 16 years. They then raped on
Shakina Khatoon. Thereafter, they committed rape on Maimum Nisa.
Both Shakina and Maimum were married. It was, therefore a case where
the four accused committed rape on each of the three women in
succession.
The plea raised by the defence, was that the case was foisted on
the accused persons due to communal feelings.
The Supreme Court rejected the defence pea and held, "even if
communal feelings had run high, it is inconceivable that an unmarried
girl and two married women would go to the extent of staking their
reputation and future in order to falsely set up a case of rape on them for
the sake of communal interests".
The accused No. 1, Dr. Bharti who played a leading role in the
commission of the offences, was sentenced to imprisonment for life. The
other three accused were sentenced to rigourous imprisonment for 10
years each.
It was a case of Gang Rape. The Supreme Court observed, "It is

not necessary that the prosecution should adduce clinching proof of a
completed act of rape by each one of the accused on the victim or on
each one of the victims where there are more than one in order to find
the accused guilty of gang rape and convict them under Section 376
IPC.
This case is covered by Sec. 376 (2) IPC. The minimum

punishment prescribed was ten years imprisonment. The Supreme
Court awarded the minimum of ten years as a against each of the three
accused. The remaining accused (Dr. Bharti) was sentenced to
imprisonment for life.
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Readings in Law
Caste Study No. 2
BALWANT SINGH & OTHERS (APPELLANTS)

VS
STATE OF PUNJAB (RESPONDENT)
REPORTED IN AIR 1987 SUPREME COURT 1080
In this case. Km. Rajwant Kaur, aged about 19 or 20 years who was a
student of B.A. Part-II, was raped by the four accused, Balwant Singh,
Gurdish Singh, Nirmal Singh and Saudagar Singh. The contention of the
accused was that because of the enmity of the father of the prosecutrix
against the accused. the accused had been falsely implicated. The
Supreme Court did not accept the contention and observed that "it may
be that the litigations are going on between Dalip Singh (father of the
prosecutrix) and the appellants, but it is absurd to suggest that because
of the litigations or any enmity that he may have against the apellants,
he would have falsely involved his daughter in a case of rape by the
appellants".
In this case, the evidence of the prosecution that she was raped by
the accused persons one after the other, was supported by the Medical
Report and also by the evidence of the father.
The Supreme Court also observed that it cannot be said that

whenever resistance is offered there must be some injury on the body of
the victim. In this case, the prosecutrix had red abrasions on her right
breast. The absence of any injury on the back of the prosecutrix or any
other part of her body, does not falsify the case of rape by the appellants
on her.
235

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Hkk-iz- lsok O;kolkf;d ikB~;dze

yky cgknqj 'kkL=h jk"Vªh;

Sunil Kumar Negi

1. Executive Magistrates -Their Functions & Powers

5. Police Investigation - an outline 58

9. Inquest - Principles & Procedures 88

11. Inquest - Skill Oriented Task Exercise

19. Order u/s 144 Cr. P.C. 142

20. Order u/s 145 Cr. P.C. 147

1. The Indian Evidence Act, 1872- An introduction 157

8. Evidence Part-II 213

EXECUTIVE MAGISTRATES - THEIR FUNCTIONS AND POWERS

I. Scheme of Separation of the Judiciary from the EXECUTIVE

In pursuance of the scheme of separation, two categories of

(i) Judicial Magistrates.

(ii) Executive Magistrates.

II. Broad Division of the Magisterial Functions

Broadly speaking, such functions of a Magistrate, as are

III. Revised set-up of Criminal Courts

Executive Magistrates are Criminal Courts within the meaning of

When an Executive Magistrate acts judicially, say for instance,

IV. Appointment of Executive Magistrates

Executive Magistrates are to be appointed by the State

Executive Magistrates may be appointed not only for every district

V. Absence of gradation amongst the Executive Magistrates

Unlike the Judicial Magistrates, the Executive Magistrates have

VI. Division of Executive Magistrates

The Executive Magistrates may, however, be divided under the

(1) District Magistrates - Sec. 20(1).

(2) Additional District Magistrate - Sec. 20(2).

(3) Sub-Divisional Magistrates - Sec. 20(4).

(4) Subordinate Executive Magistrates - Sec.20(1).

(5) Special Executive Magistrates - Sec. 21.

VII. Subordination of Executive Magistrates

(a) All Executive Magistrates, other than Additional

(b) All Executive Magistrates attached to a Sub-Division

(c) Additional District Magistrates are not subordinate to

VIII. Territorial Jurisdiction of the Executive Magistrates

Their jurisdiction extends throughout the district unless it is

IX. Distribution and Allocation of Business

District Magistrate is empowered to distribute business among the

In this context, it may be remembered that all or any of the powers

An Executive Magistrate, within his local jurisdiction, may himself

XI. Endorsement of Warrant by the Executive Magistrate

Warrants to be executed outside the local limits of the court

XII. Production of persons arrested on warrants issued by the

May be produced before the Executive Magistrate vide Sec. 80.

XIII. Procedure to be followed by the Executive Magistrate when

(a) The Executive Magistrate should check up whether the

(b) When he is so satisfied, he is bound to direct the removal of

(c) If the offence is bailable, he shall enlarge the person under

XIV. Powers of the District Magistrate and the Sub-Divisional

(a) U/S 94 Cr.P.C. for search of places suspected to contain

(b) U/S 97 Cr.P.C. for search of persons wrongfully confined.

(c) U/S 98 Cr.P.C. for restoration of abducted females.

NOTE: 93(1) Cr.P.C. authorises a court to issue search warrant for

XV Powers of any Executive Magistrate

(i) to require search to be made for letters and telegrams in the

(ii) to authorise police officer not below the rank of Sub-

XVI. Power to direct search in his presence

An Executive Magistrate, if and when he is competent to issue a

XVII. Security for keeping peace and for good behaviour