Beruflich Dokumente
Kultur Dokumente
ARREST AND INVESTIGATION
1. Article 22(2) of the Constitution of India requires that person arrested or detained
in custody should be produced before the nearest Magistrate within 24 hours of
such
arrest excludidng the time necessary for the journey from the place of arrest to the
court of the Magistrate, and that no such person should be detained beyond such
period without the authority of the Magistrate. The Criminal procedure Code also
make a similar provision in respect of persons arrested without warrant. In case of
a complaint ,the Magistrate should check the time of arrest by questioning the
persons
arrested, and see that this important constitutional safeguard for the personal
liberty
of the subject is not violated.
Attempts are sometimes made to evade the law by describing custody or detention
of any kind as ‘nazarkaid ’ or surveillance. Surveillance is one thing and
detention in any kind of custody is another. It is a mere evasion of the law to keep
a suspected person in any kind of custody and then by calling such detention
‘nazarkaid’ to say that he is not under arrest. The system is still more
objectionable
when applied to witnesses.
If the Magistrate finds that any person has been unlawfully detained, he shall
report the matter to the Sessions Judge, who shall take appropriate action in the
matter
2. Women accused of any offence, if arrested so soon after child birth that they can
not at once be taken before the Magistrate without personal suffering and risk to
health
should not ordinarily be removed until they are in a proper condition to travel.
They
should be allowed to remain under proper charge in the care of their relations, or
be
sent to the nearest dispensary, and suffered to remain there until the officer in
charge
of the dispensary certifies that they are sufficiently recovered. In such
cases,sanction
must be obtained by the police from the nearest Magistrate for their dentention at
their homes, or in the dispensary, beyond the period of 24 hours allowed by
section
57 of the code of criminal procedure,1973. The same procedure should be
followed
in the case of other accused persons who are too ill to travel.
3. (1) If any allegations of illtreatment is made by a prisoner, the Magistrate shall
then and there examine the prisoner’s body,if the prisoner consents, to see if there
are any marks of injuries as alleged, and shall place on record the result of his
examination. If the prisoner refuses to permit such examination ,the refusal and
the
reason therefor shall be recorded. If the Magistrate finds that there is reason to
suspect
that the allegation is well founded, he shall at once record the complaint and cause
prisoner to be examined by a Medical Officer or registered Medical Practitioner as
provided in section 54 of the Code of Criminal Procedure,1973 and shall make a
report to the Sessions Judge. If he has not ht power to take up the necessary
inquiry himself, he should forward the prisoner with the record to the Judicial
Magistrate having Jurisdiction to investigate the case.
Attention of the Magistrate is invited to the provision of section 54 of the Code of
Criminal Procedure,1973, which lays down that the Magistrate shall, at the
request
of the arrested person, direct the examination of the body of such arrested person
by a Registered Medical Practitioner in case of his allegation before him that such
examination of his body will afford evidence which will disprove the commission
by him of any offence or which will establish the commission by any other person
of any offence against his body.
(2) (i) Medical Officer in charge of jails must carefully examine the body of every
undertrial prisoner on the day of his arrival in jail or at least on the day following:
(ii) Similarly, in the case of third class subsidiary jails, if there is a SubAssistant
Surgeon or other Medical Officer in local charge of the place, every undertrial
prisoner should be examined by him ,if present at the station, within 24 hours of
admission;
(iii) In the case of lockups and subsidiary jails at places where there is no Medical
officer or the Registered Medical Practitioner, as the case may be,the officer in
charge in all suspicious cases should send undertrial prisoners in custody to the
nearest Medical Officer or the Registered Medical Practitioner ,as the case may be
for examination.
(iv) A Medical Officer or the Registered Medical Practitioner ,as the case may be,
to whom a person in police custody is brought for examination ,should examine
the
person of the prisoner ,and even though no suspicious marks are found,should at
once report to the Magistrate authorising police custody that he has done so.
(3) In all such cases, the Medical Officer or the Registered Medical Practitioner,
as the case may be, should record the result of the examination.
(4) If any marks or symptoms at all indicative of recent violence or illtreatment
are found, the Medical Officer or the Registered Medical Practitioner, as the case
may be, concerned,should immediately make a report to the appropriate Judicial
Magistrate and to the Sessions Judge. This report should specify the nature of the
injuries and their position, together with the opinion of the Medical Officer or the
Registered Medical Practitioner, as the case may be ,as to their causation, and
should
state whether the prisoner makes any allegations in regard to them against the
police
or others responsible for his arrest or custody, or state how else the prionser
explains
them.
(5) If such allegations have been made, the Sessions Judge should arrange for
an immediate Magisterial investigation into the complaint through such Judicial
Magistrate as he may deem most convenient, unless he is satisfied by the
Magistrate’s
report under Subparagraph(1) above, that adequate investigation is proceeding.
(6) The result of this investigation,so far as it refutes or establishes the truth of
the allegations made, must be communicated as soon as possible to the Court
seized
of the substantive case If it considers it desirable or necessary , the Court may
summon the Medical Officer or the Registered Medical Practitioner, as the case
may
be, to give evidence in the case.
Remand
4.(1) It is observed that Magistrates allow remand of the accused to custody
under section 167 of the Code of Criminal Procedure,1973, or allow remand
under
section 309 of the Code of Criminal procedure,1973, without satisfying themselves
that there are reasonable grounds for such remand. The law requires that Magi
strates should not allow remand in such cases without being satisfied that there are
really good grounds for it. Magistrates should not ,therefore, allow remand applica
tions as a matter of course, but only after being satisfied that further time is really
necessary for the purpose of investigation. In this connection ,the attention of all
the Courts is invited to the rulings reported in A.I.R. 1975 S.C.1465 (Natabar Parida
Vs. State of Orissa) and 78 B.L.R.,page 411 (State of Maharashtra Vs. Tukaram
Shiva Patil).
2. In this connection ,attention of the Magistrates is drawn to the provisions
of
section 167(1) of the Code of Criminal Procedure 1973 which makes it
obligatory
on the police to send copies of entries in the diary relating to the case when
forwarding the accused for the purposes of remand. Magistrates should
invariably
insist upon copies of such entries and other relevant material being
produced by the police, and such entries and material should be carefully
examined by the Magistrates in order to satisfy themselves that there are
good grounds for remand.
5. while it is not intended to fetter the discretion of the Magistrates in
matters of
remand, the following general principles are stated for their guidance :
(i) A remand to police custody of an accused person should not ordinarily
be
granted unless there is reason to believe that material and valuable
information
would thereby be obtained, which cannot be obtained except by his
remand to
police custody.
(ii) Where a remand is required merely for the purpose of verifying a
statement
made by the accused, the Magistrate should ordinarily remand the accused
person
to Magisterial custody.
(iii) If the Magistrate thinks that it is not necessary for purposes of
investigation
to remand the accused to police custody, he should place the accused
person in
Magisterial custody ; and in case he has no jurisdiction to try the offence
charged,
he should issue orders for forwarding the accused person to a Magistrate
having
Jurisdiction.
(iv)If the Magistrate thinks that the police not only require more time for
their
investigation but that for some good reason they require the accused
person to be
present with them in that investigation ,the Magistrate may remand him to
police
custody ,but while doing so, he must record the reasons for his order.
6.When the accused person is remanded either to police custody or to
some safe
custody for the purpose of further investigation by the police, it must be
borne in
mind that ,however incomplete an investigation may be, an accused person
in every
case must be produced before a Magistrate having jurisdiction within a
maximum
period of 16 days ( 1 day allowed by the law if so much be necessary, and
15more days which may be allowed by a Magistrate on proper cause
shown).
7.No order under section 167 for remand of an accused person should be
made
unless the accused is produced before the Magistrate making the
order,either in person or through the medium of electronic video linkage,
and he has been heard on any objection he may have to offer to the
proposed order of remand, unless the production of the accused is required
to be dispensed with under paragraph 2 of this chapter.
Explanation. For the purpose of Section 167 of the Criminal Procedure Code expression
“Production of the accused before the Magistrate” shall include “his production through
the medium of video linkage by interface. ”
unless the production of the accused is required to be dispensed with under paragraph
2 of this Chapter.
Facilities to Accused in police Custody or Jail to Interview Relatives and
Legal
Advisers.
8.Complaints are sometimes made that accused persons in police custody are
not accorded necessary facilities to interview their relatives and legal advisers.
Article 22 of the Constitution of India provides as follows:
Article 22 (1) No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his choice
2. Every person who is arrested and detained in custody shall be
produced before
the nearest magistrate within a period of twentyfour hours of such
arrest excluding the time necessary for the journey from the place
of arrest to the court
of the magistrate and no such person shall be detained in custody
beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply:
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law
providing for
preventive detention.
(4) No law providing for preventive detention shall authorise the
detention of
a person for a longer period than two months unless an Advisory
Board constituted in accordance with the recommendations of the
Chief Justice of the
appropriate High Court has reported before the expiration of the
said period of two months that there is in its opinion sufficient
cause for such detention:
Provided that an Advisory Board shall consist of a Chairman and
not less than
two other members, and the Chairman shall be a serving Judge of
the appropriate High Court and the other members shall be serving
or retired Judges of any High Court ;
Provided further that nothing in this clause shall authorise the
detention of any
person beyond the maximum period prescribed by any law made by
parliament
under subclause (a) of clause (7).
Explanation In this clause, “ appropriate High Court ” means
(i)in the case of the detention of a person in pursuance of an order
of detention
made by the Government of India or an officer or authority
subordinate to that
Government ,the High Court for the Union Territory of Delhi;
(ii) in the case of the detention of a person in pursuance of an order
of detention
made by the Government of any state (Other than a Union
territory), the High
Court for that State ; and
(iii) in the case of the detention of a person in pursuance of an order
of
detention made by the administrator or a Union territory or an
officer or
authority subordinate to such administrator, such High Court as
may be specified
by or under any law made by parliament in this behalf.
5. When any person is detained in pursuance of an order made under any law
providing for preventive detention ,the authority making the order shall,as
soon as
may be, communicate to such a person the grounds on which the order has
been
made and shall afford him the earliest opportunity of making a
representation
against the order.
10.Nothing in clause (5) shall require the authority making any such order as
is
referred to in that clause to disclose facts which such authority considers to
be
against the public interest to disclose.
13.Parliament may by law prescribe
(a) the Maximum period for which any person may in any class or classes
be
detained under any law providing for preventive detention ; and
(b) the procedure to be followed by an Advisory Board in an inquiry under
clause (4).
An accused person, who is remanded into police custody , has a right to
claim
a reasonable opportunity of getting into communication with his legal
advisor for the purpose of preparing his defence, and the police cannot
legitimately claim that
in no circumstances should he be allowed to see his legal advisor until they
choose
to permit it.
9.It has been observed that no uniform practice is followed in the criminal
courts
with regard to giving intimation to an accused who is in jail in one case
that he is
required to be produced for the trial in any other case.
The Magistrate or the judge should see that sufficient notice is given to the
accused about the subsequent case so that he may get an opportunity of
defending
himself. On the production of the accused from the jail, the magistrate or
the judge
concerned should himself make sure whether in fact sufficient opportunity
has been given to the accused to get in touch with his relatives or his
lawyer and commence hearing only after he has had such opportunity.
10.Under Section 157 of the Code of Criminal Procedure 1973 it is obligatory on the part
of the officer in charge of a police station to sent report forthwith to
magistrate empowered to take cognizance of an offence on a police report regarding
information received by him about the commission of a cognizable offence. In case
the magistrates find that proper steps are not being taken by the police ,they may take
such action under section 159 of the code of Criminal Procedure,1973 as they may
deem fit.
11.Section 165(5) lays down that copies of any record made under sub
section (1)
or subsection (3) of that section relating to search of places should be sent
by the
Investigating Officer to the nearest magistrate empowered to take
cognizance of the offence . This section further lays down that the owner
or occupier of the places
searched shall,on application ,be furnished with a copy of the same free of
cost by
the magistrate. This provision lays down a very salutary safeguard so far
as the
right of a citizen is concerned. All such records shall be immediately
transferred
to the case as soon as it is filed in the court.
Bail.
19.The power of admitting a person to bail is a matter of judicial discretion,
and
not a ministerial act ; and the chief consideration in the exercise of that
discretion
must be the likelihood of the person failing to appear at the trail. Other
considerations to be borne in mind are the seriousness of the
offence,previous convictions, if any, of the accused,abnormal conditions
and necessity to take special precautions in particular cases. Interim Bail
is, however,permissible ,but in serious cases the prosecution may,
wherever possible,be heard. Bail should not be refused nor prohibitive bail
insisted upon, merely on the ground that the police desire it, for such a
decision may lead to grave injustice. The Court may, however,
take into consideration the information supplied and the reports made by
the police.
In respect of anticipatory bail, provided by section 438 of the Code of
Criminal
procedure 1973, the attention of the Sessions Courts is invited to the
decision of the Supreme Court reported in A.I.R.,1977 ,S.C. Page 366
(Balchand Jain Vs. State of
Madhya Pradesh).
Practising Lawyers not to be accepted as Sureties
27.Practising lawyers shall not be accepted as sureties.
Verification of Solvency of Sureties
29.(1) The responsibility for accepting the surety as solvent for the required
amount is primarily that of the presiding Officer of the Court and in
ordinary cases
he should discharge it himself by making such summary enquiry as in the
circumstances of the case he may think fit.
(2) The production of a solvency certificate from the Revenue Authorities
is not
always essential and may be insisted upon only in cases of doubt and cases
involving large sums.
(3) For the purpose of determining whether the sureties are solvent, the
Court
may, if it thinks fit, accept affidavits in proof of the facts contained therein
relating
to the solvency of the sureties, or may make such further inquiry as it
deems
necessary.
4. Insistence upon the possession of immovable property by sureties in bonds
of
small amounts not exceeding Rs. 1,500 would cause serious inconvenience
to the
accused in procuring a surety. The Judge or Magistrate may, therefore, in
suitable
cases, where the amount of the bond does not exceed Rs. 1,500 assess the
solvency
of the surety even upon the basis of his movable property and assets. The
intendings surety should present his application for suretyship ink the
model form
which is prescribed below for guidance. The Clerk of the Court in the
Sessions Court or Nazir or Senior Clerk in the Magisterial Courts should
check the proofs
accompanying the applications, and thereafter place the matter before the
Judge
or Magistrate with his remarks. The Judge or Magistrate should consider
the application in the light of the proofs produced and, if necessary,
examine the surety
personally and may also call for further and better proof. The Judge or
Magistrate
after holding a summary enquiry may pass an order either accepting the
surety or
rejecting the application as he deems fit.
15.To facilitate checking one person standing surety in several cases, a
declaration
form should be appended to the surety bond and intending surety should
be asked
to sign a declaration stating whether he has stood surety in any other
pending cases.
Such a declaration would enable the Police Officer or the Magistrate
concerned to
decide whether the surety should be accepted or not. If the declaration thus
signed
by a surety is found to be false subsequently, necessary action can be taken
against
him for such a false declaration.
5A. To avoid abscondence of accused due to furnishing of bogus surety or
surety, bond by a stock surety, in addition to the proof as mentioned in
subclause 3 of the Format of Application of surety, the surety, in all cases
under the NDPS Act, the cases in which offence is serious and sentence
provided is more than 10 years imprisonment or the cases under the
Special enactment like POTA/MOCCA etc.,
shall furnish atleast one of the document, amongst following :
1) Passport.
2) Identity Card Issued by the Election Commission of India.
3) Permanent Account Number Card, i.e. PAN card issued by the Income
Tax
Department .
4)ATM/Debit Card, or Credit Card issued by any Nationalised or Private
Bank on Standing at the National Level, having photograph of the holder
thereon.
5) Identity Card issued by the Government Authorities or the Public
Statutory Corporations.
6) Any such document, which is ordinarily issued by an Authority after
due verification of the identity of the person and his address, which the
Judge or the Magistrate may think just and proper, in the interest of justice,
by recording specific reason.
5B. The Surety shall submit two copies of his latest passport size
photograph which is not older than six months before the date of
submission, of which one copy shall be retained in the court record and
one copy to be retained by the concerned police station.
FORM
In the Court of the ..............................................
Judge/Magistrate............................
Application No....................... of 19
(In re: Case No........................of 19
Remand Application of the ......................................................................Police Station)
State ( Or as the case may be)..........................................................Complainant.
Vs.
................................................................................................................................Accused
I(Name of Surety ).................................................................................Solemnly affirm
and state as follows:
1. I beg to offer myself as a Surety for Accused No..................................(full name
of the accused) ............................... Who is charged under
section ...............................
and who has been ordered to be released on bail in the sum of Rs. (in
words)..............
.................................................................with
the .........................................................
Surety / Sureties in the like amount, by the ...............................................Court (or
by
Your Honour ) on / / 19.
2. I give below certain particulars concerning myself :
(A) Full name of the Surety :
Qualifications, if any :
Full residential Address :
period for which Surety has been
residing at the above address
Rent paid for the residence . .
Whether the rent bill of the residence
stands in the Surety’s name.
(B) Occupation or business . .
Full business address . .
Nature and extent of business,and
Surety’s share therein :
Rent paid for the place of business . .
Whether the rent bill of the place of
business stands in the Surety’s name .
© Name and address of the employer,
if the Surety is in service.
Full address of the place of service . .
Amount of monthly pay and allowances
drawn :
Length of service with the employer . .
Amount of provident Fund, if any,
at Surety’s credit.
(D) Full particulars of houseproperty
owned, if any, its location,rateable
value, and the Surety’s share or
interest therein ; and whether it is in
any way encumbered:
(E) Amount of incometax paid during
each of the last three years:
Banking accounts, if any . .
Amounts now lying in each banking
account :
(F) Length of time for which the Surety
has known the Accused personally :
Whether the Surety is related to the
Accused; if so, how ?
Whether the Surety has stood surety
for any other person in the preceding
six months. If so, state the names
of the parties; the amount for which
the surety has stood for them : the
Court and the number of the cases
against those accused; and whether
the case or cases against those
persons are pending or have
concluded :
Whether the Surety has, at any time,
had his surety bond forfeited. If so,
give particulars:
Whether the Surety has, at any time,
made an application for suretyship
which was rejected; if so, give the
particulars thereof :
Whether the Surety is, (or has been)
involved in any civil litigation:
Whether the Surety himself has been
concerned in any case as an accused
person: if so, give particulars of the
case:
(G)Any other particulars in regard to the
status of the Surety, or his income
and assets, which the Surety may
desire to give :
3. I produce the following proof in support of my statement, and give particulars
of the same as below:
(Rent bills of place of residence)
(Ration Card)
(Rent bills of place of business)
(Deed of partnership or other documents relating to business)
(Certificate from the employer)
(Certificate of amount in the provident Fund )
(Title deeds of properties)
(Municipal bill of the properties )
(Bank pass books)
(Incometax payment receipts)
(Other proof) :
As per Subrule 5A of Rule 14, I have furnished one of the document mentioned
below:
1) Passport.
2) Identity Card Issued by the Election Commission of India.
3) Permanent Account Number Card, i.e. PAN card issued by the Income
Tax
Department .
4)ATM/Debit Card, or Credit Card issued by any Nationalised or Private
Bank on Standing at the National Level, having photograph of the holder
thereon.
5) Identity Card issued by the Government Authorities or the Public
Statutory Corporations.
6) Any such document, which is ordinarily issued by an Authority after
due verification of the identity of the person and his address, which the
Judge or the Magistrate may think just and proper, in the interest of justice,
by recording specific reason.
4. I pray that I may be accepted as a Surety for the abovementioned Accused in
the sum of Rs...................................(in words)
5. I hereby declare that I have not stood surety in any other pending case or cases.
Solemnly affirmed at
this day day of 19 ( Signature of Surety)
( Identified by .......................................................... Advocate)
Before me,
Judge /Magistrate,
Court
6. Attention of the Magistrates is drawn to the High Court Circular No. E4110/
54,dated the 21st September 1955, which is reproduced verbatim below:
“Their Lordship are pleased to direct that all Criminal Courts should keep
a list of sureties in the proceeding that come up before them. A copy of this list,
alphabetically arranged,should be sent every month to the Sessions Court. From
these lists received from the subordinate Courts, the Sessions Court should
prepare
a consolidated alphabetical list of sureties after adding to it the names of sureties
in the proceedings before itself. Additions will continue to be made to this list
every month as names will be received from the Subordinate Courts. This list
may be called list “A” for reference. Immediately a person is found to have
been surety for two different accused persons in two different matters in this list,
there would be a case for bringing his name on another consolidated list, which
may be called list “B” for reference,kept for the whole District so that his activi
ties will be watched. Unless his name is brought on such a list and each Court
has got a copy of the list (List B), one Court would not know what the surety is
doing in other Courts and it would be a long time before the Courts come to know
that any person is, as a matter of fact,working as a professional surety . Each
Court should also be informed every month of the additions, if any ,made to this
list. Officers in charge of the work of accepting sureties should refer to this list
(List B) before accepting a surety ,and they are advised to reject the bail of any
person who, they feel ,is standing surety for an accused person ,for consideration.”
Both the lists “A” and “B”,as aforesaid ,should be maintained in the following
form:
Date Name of Surety Criminal Case No.
1 2 3
7. Attention of the Magistrates is drawn to Section 446 read with section 421 of
the Code of Criminal Procedure ,1973 ,which does not provide for sentence of
impri
sonment in Civil Jail for nonpayment of the forfeited bond amount if the same
cannot be recovered by attachement of property of the surety.
1. The following instructions are issued by Government regarding issue of
solvency certificate for production in Criminal Courts :
Revenue Officers not below the rank of NaibTahsildar (exercising powers
of
Tahsildar) are authorised to issue Certificate of Solvency to the parties for
production in the Criminal Courts on payment of fees of Rs.. 2 per
Certificate, for
which purpose the following limits are prescribed for the Revenue Officers
in
exercising their powers in that behalf:
(i) Naib Tahsildar (exercising powers of upto Rs.25,000
Tahsildars).
(ii) Tahsildars .... ..... ..... Above Rs.25,000 but not exceeding
Rs.1,00,000
(iii) SubDivisional Officers ... ...... Above Rs.1,00,000 but not exceeding
Rs. 5,00,000
(iv) Collectors .... .... .... Above Rs. 5,00,000
The said fees should be recovered in the shape of Court fee stamps.
Every application for a solvency certificate should be affixed with a Court
fee stamp of 65 paise and accompanied by an affidavit showing reasons
why the
certificate is sought and by the following documents,which should be
obtained
by the parties at their costs from the officers concerned :
(a) in the case of agricultural lands; Khata Utara and Extract from Records
of
Rights.
(b) in the case of nonagricultural lands and immoveable properties : A
state
ment regarding the details of the property and its estimated price.
In the case of agricultural lands, the Revenue Officers should issue the
Solvency
Certificate on the basis ofkl the Panch valuation of the land and such other
enquiry as the Revenue Officer concerned may wish to make.
Revenue Officers concerned should,on receipt of the application ,issue the
Certificate after holding necessary inquiry as expeditiously as possible.
(2) The Adivasis are exempted from the payment of prescribed fee of Rs.2
for
the issue of Solvency Certificate required for production in Criminal
Courts and
also from the stamp duty chargeable on affidavits executed by them for the
purpose of obtaining Solvency Certificates.
The term ‘Adivasis’ means and includes all the members belonging to the
Scheduled Tribes specified in Section II of the Schedule accompanying
Government Resolution , Political and Services Department ,No.
490/46,dated the
1st November 1950 ,as amended from time to time.
Identification Parades
1. It is not desirable that Judicial Officers should associate themselves with
identification parades. All Civil Judges and Judicial Magistrates
are,therefore,
directed that they should not participate in identification parades which are
conducted by the police for investigation purposes. In this
connection,order in
the Government Circular,Home Department ,No.MIS.1054/84588,dated
the
22nd April 1955 ,is reproduced below for the information of the Civil
Judges
and Judicial Magistrates:
“In the Judgment delivered by the Supreme Court in Ramkishan Versus
Bombay State (A.I.R.1955 S.C.104), it has been held that statements made
before police Officers by witnesses at the time of identification parades are
statements to the Police,and as such are hit by section 162 of the Code of
Criminal Procedure,1898. In view of that ruling,it is necessary that such
parades are not conducted in the presence of Police Officers. The
alternative is to take the help of the Magistrates or leave the matter in the
hands of panch
witnesses. There would be serious difficulties in panch witnesses
conducting
parades successfully. In regard to Magistrates ,it is not feasible to associate
Judicial Magistrates with such parades. The only Practicable
course,therefore,
is to conduct the parades under Executive Magistrates and Honorary
Magistrates (not doing judicial work). Government is accordingly pleased
to direct that the Police Officers concerned should obtain the help of
Executive
Magistrates and Honorary Magistrates in holding identification parades.”
2. The Magistrates holding identification parades should follow all the guidelines
given below which are illustrative and may not be exhaustive .Exercise of the
discre
tion of the Officer concerned would be the sole criterion. The following principles
enumerated by Archbold in his treatise“Criminal pleading,Evidence and practice ”
would mutatis mutandis apply to the identification parades,with suitable
variations
consistent with our law and decided cases.
(a) The object of an identification parade is to make sure that the ability of the
witness to recognise the suspect has been fairly and adequately tested.
(b) It should be fair and seem to be fair and every precaution must be taken to
exclude any suspicion of unfairness or risk of erroneous identification through the
l
witnesses attention being directed specially to the suspected persons instead of
equally to all the persons to be paraded.
© The Officer concerned with the case against the suspect, if present, must not
take part in conducting the parade.
(d) The parade should be arranged by an officer who is not police officer.
(e) After the commencement of the identification parade, every thing in respect
of it should take place in the presence and hearing of the suspect ,including any
instruction to the witnesses attending it as to the procedure that is to be adopted.
(f) All unauthorised persons should be strictly excluded from the place of
identification parade.
(g) The Witnesses should be prevented from seeing the suspect before he is
paraded with other persons,and witnesses who have previously seen a photograph
or description of the suspect should not be led into identifying the suspect by
reason of their recollection of the photograph or description,as for instance by
being shown the photograph or description shortly before the parade.
(h) The suspect should be placed among persons (if practicable eight or more )
who are as far as possible of the same age,height,general appearance (including
standard of dress and grooming) and position in life. Two suspects of roughly of
similar appearance should be paraded with atleast twelve other persons. Where,
however, the two suspects are not similar in appearance or where there are more
than two suspects, separate parades should be held using different persons on
each parade.
(i) All members of a group of suspects more than two should not be paraded
together. There should be more parades than one, each including not more than
two. Two suspects of obviously dissimilar appearance should not be included in
the same parade. Identification numbers should be concealed.
(j) The Suspect should be allowed to select his own position in the line and should
be expressly asked if he has any objection to the persons present with him or the
arrangements made. He should be informed that if he so desire ,he should have
his Advocate(or a friend) present at the identification parade.
(k) The witnesses should be introduced one by one and, on leaving ,should
not be allowed to communicate with witnesses waiting to see the persons paraded;
and the suspect should be informed that he is free to change his position after
each witness has left.
l. The witness should be asked whether the person he has come to identify
is on the parade . He should be told that if he cannot make a positive
identification,
it is open for him to say so.
(m) Generally,a witness should be asked to touch any person whom he
purports to identify ,but if the witness is nervous at the prospect of having to do
that (in cases where the witness is a woman or a child who has been victim of
a sexual or violent assault or other frightening experience) and if prefers not to
touch the person ,identification by pointing out should be permitted.
(n) If a witness indicates someone,but is unable to identify him positively,this
fact should be carefully noted by the officer conducting the parade and every other
circumstance ,(Such as whether the suspect or any other person is identified or not
),
connected with it should be noted.
(o) If any request is made by a witness, for example to see the suspect with his
hat on or his hat off or to see the person walk or to hear the person speak and
there being no objection to the person paraded as asked for,the incident should
be recorded.
(p) Where a parade has to be held in prison,a prison officer should be present
throughout incharge of the discipline of the prisoners who would take part.
Otherwise,the police officer unconnected with the case, ought to be responsible
for the parade. It must be ensured that the parade is conducted in the same way
as a parade outside prison.
(3) In order that the proceedings of the Identification parades are recorded
properly
and in conformity with the judicial requirements, Government of Maharashtra ,
Home Department have issued Circular No. PRO 2460/16653IX,dated the 16th
August 1963 ,and laid down the following procedure which includes the writing
up of a memorandum in the form given below.
Procedure for holding Identification parades
(i) An Executive Magistrate /Honorary Magistrate, if called upon for the purpose
of holding an Identification parade, should remember that he is the person who
conducts lthe parade ; he will be in full and sole charge of the entire proceedings.
(ii) The Executive Magistrate /Honoary Magistrate should first acquaint him
self, very briefly,with the facts of the case and find out who is to be put in the
parade for identification and who are the witnesses to be called up for
identification.
(iii) Two independent respectable persons (not being persons connected with
the police),should be first called up. The Police themselves will have normally
arranged to call up such persons; but the Executive Magistrate ./Honorary
Magistrate will question them and satisfy himself that they are independent and
fairly intelligent persons. In order that they may follow the proceedings
intelligently,
the Executive Magistrate /Honorary Magistrate should acquaint them ,briefly,
with the facts of the case and as to who is sought to be identified and who are
to come for identification.
(iv) The parade should then be arranged in a room or place which is such
that the identifying witnesses, as well as the persons connected with the police,
should not be able to look into it.
(v) If there is only one accused person to be identified ,there should be at least
half a dozen persons placed in the parade. If two accused persons are to be
identified, then there should be about 10 or 12 persons in the parade . Not more
than two accused should be placed in any single identification parade.Normally,
the police themselves will have called up the persons to be put in the parade; but
the Executive Magistrate/Honorary Magistrate should see that they are persons
of more or less the same physical appearance, and approximately of the same
age, as the person to be identified . It is desirable that innocent persons to be
mixed should be different for each such parade.
J 4641—2
(vi) No person,other than the persons in the parade, and the two respectable
persons, should be allowed to remain in the room where the identification
proceedings are being held. In particular, all police officers and constables should
be asked to withdraw themselves complectly from the room. There is no objection
to any of them remaining outside the room or otherwise at hand,ready to be'
be called up in case the accused creates trouble,or in case of emergency. They
should ,however,not be visible from the room or the place where the parade is
being held.
(vii) After the parade is arranged, one of the two respectable persons should
be sent up to bring the accused from the lockup . Care should be taken to see
that when the accused is being brought from the lockup, the identifying witnesses
do not have an opportunity of seeing him. They shoud be kept in quite a different
room, out of sight of the lockup.
(viii) At this stage, the Executive Magistrate/Honorary Magistrate should
commence to write the memorandum. It should include :
(a) the place at which ,and the date on which ,the parade is being held and
the time at which it was commenced;
(b) the names,ages,occupations and the full addresses of the two respectable
persons;
© the names and the approximate ages of the persons standing in the parade,
mentioning clearly, one below the other ,in numerical order their positions in
the parade (which positions they should not be allowed afterwards to alter );
(d) the fact that no persons ,other than those,in the parade and the two
respectable persons,were allowed to remain in the room and that all police
officers and constables were asked to withdraw; and
(e) that respectable person so and so fetched the accused from the lockup,
and that the identifying witnesses were in a different room, so that they could
not see him being brought from the lockup to the identification room.
ix. When the accused is brought,the Executive Magistrate/Honorary Magistrate
should ask him to take whatever place he likes in the parade. The place which
he selects should be noted in the memorandum. For example ,he may elect to
stand between numbers 3 and 4 in the parade;l and it should then be noted that
he took his position between Nos. 3 and 4 in the parade. The original numbering
of the persons in the parade should not be altered simply because the accused
has now joined in.
x. The accused should then be asked if he wants to make any alteration
in his dress. He may change his cap or coat, or he may decide to put on ( or
remove)
a cap or a coat. He should be allowed to do this, and that fact should be noted
in the memorandum. If he does not wish to change his dress, then that fact,
too ,should be noted in the memorandum.
xi. Then one of the respectable persons should be asked to fetch the first
identifying witness from the room in which he may be sitting . When the witenss
arrives, the Executive Magistrate/Honorary Magistrate should question him and
ascertain from him whether he had an opportunity to see the culprit at any time
subsequent to the offence or after the arrest. He may either record the statement
separately on make a reference to that statement in his memorandum. The
witness should then be asked to view the parade carefully and see whether he
would be able to identify the person, who ,for instance,stabbed him ,or whom
he saw firing a shot from a revolver,or whom he saw inside the flat in which
a burglary may have taken place ,or ,as the case may be . The identifying writness
will then go up and look closely at the parade. If he identifies any person,he
should be asked to go forward and touch that person, and not merely to point
him out from a distance. This is necessary in order that there may be no doubt
afterwards as to whom exactly he had identified. The fact that the identifying'
witness identified the accused,should be noted in the memorandum (along with
the name of the accused) and, of course, also if he failed to identify him or
identified
a wrong person. It should further be noted whether the witness identified the
accused straightway or after some hesitation or after first pointing out a wrong
person and then correcting himself and pointing out the accused. When this is
over, the identifying witness should be asked to go away into a different room
and not to contact the remaining identifying witnesses. He may even be asked
to go away.
xii.After he leaves the room, the accused should be asked once again ,whether
he desires to change his place in the parade. If he changes his place, it should
be noted in the memorandum,and, also if he declines to do so. He should be
asked, again, if he wants to change his dress; and dif he does so,or if he declines
to do so, that fact should also be noted in the memorandum.
xiii.Then one of the respectable persons should be asked to fetch the second
identifying witness. In regard to the identification by him also, the same procedure
should be gone through as in the case of the first identifying witness, the
memorandum being also written up side by side.
xiv.This procedure should be followed for each subsequent identifying witness.
xv.After all the identifying witnesses have thus been exhausted one after the
other, the memorandum should be wound up by stating the time at which it was
concluded. Then the memorandum should be read over and explained to the
respectable persons in language which they understand. If the respectable persons
know English well,then they should be asked in addition, to read over the memo
randum for themselves.
xvi.After the memorandum is completed, the Executive Magistrate/ Honorary
Magistrate should make the following endorsement at the end :
“Identification parade was conducted by me personally with the help of the
two respectable witnesses,namely Shri.........................................................and
Shri..........................................................whose signature have been obtained
in token of what transpired in their presence”, and shall sign below this endorse
ment and put the date below his signature. There shall be another endorsement
to the following effect:
“We read above memorandum (or it was explained to us) and it depicts the
correct state of affairs as stated in the memorandum ”, and he shall obtain the
signature of the two respectable persons with whose help he held the
identification parade.
xvii.The Executive Magistrate/Honorary Magistrate himself should also sign
every sheet of the memorandum.
xviii.All corections and interlineations in the memorandum should be
initialled by the Executive Magistrate/Honorary Magistrate.
xix.The memorandum should then be handed over to the police officer
concerned.
xx.Care should be taken to see that at no stage of the proceedings police officer
or any police constable comes into the room in which the parade is being held.
The police should not be allowed to interfere with the proceedings, which are
entirely to be conducted by the Executive Magistrate/Honorary Magistrate. It
will be advisable to note in the memorandum itself that no police officer or
consta
ble was present at any time during the entire proceedings of the identification
parade.
xxi.The most important part of the memorandum will be the statements made
by the identifying witnesses. These should be very carefully recorded, alongwith
the questions asked to the identifying witnesses. (This recording need not be in the
question and answer form). For example,an identifying witness may be asked if
J 4641—2a
he is able to identify any one in the parade as the person who fired the shot, and
the
identifying witness may point out the accused and may add that it was not the
accused who actually fired,but that the accused was standing by the side of the
man
who had fired the shot. In that case, whatever the identifying witness states,should
be carefully noted, as far as possible in his words (translated into English).
xxii.If more than one accused are placed in parade, then in the memorandum
they should not be referred to as “Accused No.1” “Accused No.2” ,etc,but
they should be referred to by their full names.
xxiii.The memorandum should be written in the language of the Court.
xxiv.At the hearing of the case, the Executive Magistrate/Honorary Magistrate
who held the parade and wrote out the memorandum may be called upon to give
evidence. In that case, he should state exactly what happened. He has a right
to refresh his memory by referring to the memorandum which he had himself
prepared.
xxv.For the guidance of the Executive Magistrate /Honorary Magistrate l
a model form is attached herewith.
xxvi.The Executive Magistrate/Honorary Magistate are requested to consult
the District Magistrate of the district concerned on any matter of doubt or
difficulty
in regard to the holding of Identification parades.
MEMORANDUM
OF AN IDENTIFICATION PARADE HELD AT
THE .............................................
POLICE STATION
ON........................................THE............................19................
I,Shri.................................................................................SubDivisional/Taluka/
Honorary Magistrate, was called upon to hold an Identification parade and this is
the memorandum of what took place at that parade.
I,the undersigned SubDivisional Taluka/Honorary Magistate,held the Identi
fication parade in the presence of the two respectable persons whose names and
other
particulars are given as under :
1.(name)................................................................(age) about......................... years
(Occupation)
(Full Address)
2.(name)...............................................................(age) about............................years
(Occupation)
(Full Address)
The parade was commenced at (time)
The following persons stood in the parade:
(Name) (age) about
years.
(1)
(2)
(3)
(4)
(5)
(6)
No persons,other than those in the parade ,myself,the abovenamed two respectable
persons,remained in the room. All Police officers and constables were asked to
withdraw themselves completely from the room.
The Witnesses who had been called to identify the Accused were made to sit in
a separate room where from the place where the Identification parade lwas held,was
not visible to the witnesses :
Then I asked one of the two respectable persons above named,viz.....................to
fetch the Accused,(Name).................................................................from the lockup.
Whilst being brought to the room, I took precaution to see that it was not possible
for the identifying witnesses to see the Accused when he was being taken from the
lockup to the place of identfication and I also took precaution to see that the lockup
was not visible from the room where the witnesses were made to sit.
The accused was then asked to take whatever place he liked in the parade. He
stood between numbers.............................and .................... in the parade.
He was then asked if he wanted to make any alterations in his dress. (Here state
whatever alterations he made. If he made no alteration,state “The accused declined
to make any change in his dress”
Then I asked one of the respectable person:,viz...........................................................
to fetch the identifying witnesses and accordingly he went to the room where the
witness was sitting and brought him to the place of identification . The name of this
witness is ....................................................................
I asked that witness to view the parade carefully ,to see whether he could identify
the person (who had stabbed him or as the case may be).
The identifying witness went round and looked closely at the parade and identified
the Accused,who gave name as ......................................................., as the person
who had stabbed him (with a knife), on the (date)............................................19
(or,who had held the witness ,hands whilst the Accused’s companion had stabbed
, the witness,or whatever else the identifying witness may have stated).
Or
(The identifying witness failed to identify any one in the parade ).
or
(The identifying witness pointed out a wrong person ,viz.number.................in,
the parade).
The identifying witness was then asked to go away (or to sit in a different room,
and I took precaution to see that he left the place and did not go towards the room
where other witnesses were sitting and who were still to identify the Accused.
I then asked the Accused to change his place in the parade if he liked. The
Accused changed his place and now stood between numbers .......and .........in
the parade ,(or,the accused declined to change his place in the parade.).
The Accused was also asked if he wanted to make any alteration in his dress.
(Here state whether he made any alterations ,and if so,what. If he made no
alteration,state “The Accused declined to make any change in his dress”).
Thereafter, I asked one of the respectable persons ,viz................................... to
fetch the second identifying witness ............................viz.................................
from the room where he was seated. Accordingly ,he brought the witness .........
...................................
I asked this witness to view the parade carefully,etc. ( as in the case of the first
Witness ).
. (If further witnesses are called up, similar note should be made as regards the
Accused changing (or not changing ) his place in the parade,or making (or not making)
any alteration in his dress, and as regards calling up the further identifying witnesses,
and narrating as to what happened when they were called up).
I took precaution to see that no police officer or constable was present in the
identification room at any time during the whole of the proceedings and I also took
precaution to see that no police officer or constable was present at the place of
identification in order to eliminate the possiblity of suggesting to the witnesses by
any sign or gesture whatever as to where the Accused had stood.
After the parade was concluded, the police officer concerned was called in, and
the Accused was handed over to him for being removed to the lockup.
The parade concluded at (time)............................................................
The Identification parade was conducted by me personally with the help of the
two respectble witnesses,viz................................................and..................................
............................whose signatures have been obtained in token of what took place
in their presence. The identification parade has been held in a correct manner
without any tutoring of witnesses or any suggestions to them.
(Signature)..................................
SubDivisional /Taluka/Honorary Magistrate ,
(Full designation in the case of Executive
Magistrate ).
(Date)
We read the above memorandum (or it was explained to us) and it depicts the
correct state of affairs as stated in the memorandum.
(1 (Name)............................................................(Signature)...................................
(2 (Name).............................................................(Signature)...................................
(Date)
Confessions
17.Accused persons willing to make a confession should be taken for the
purpose
before a judicial magistrate and ,whenever possible ,before the magistrate
who will not eventually try the case.
Any Metropolitan Magistrate or Judicial Magistrate may ,whether or not
he has
jurisdiction in the case,record any confession or statement made to him in
the
course of an investigation under the code of Criminal Procedure ,1973 or
any other
law for the time being in force ,or at any time afterwards before the
commencement
of the inquiry or trial ,as required by Section 164 of the Code of Criminal
Procedure 1973.
18.The following instructions are issued for the guidance of the Magistrate
recording confessions and statement under section 164 of the Code of Criminal
Procedure 1973. They are not intended to fetter the discretion given by the law to
Magistrates. The only object with which they are issued is to indicate generally
the
manner in which the discretion may be exercised.:
(i) In the absence of exceptional reasons,confessions should ordinarily be
recorded in open Court and during court hours.
(ii) The examination of the accused person immediately after the police bring
him into Court, is deprecated. When the accused is produced before the
magistrate,
the police officers should be removed from the Courtroom unless, in the opinion
of the magistrate, the duty of ensuring their safe custody cannot safely be left
to other attendants. In that case, only the minimum number of police officers
necessary to secure the safe custody of the accused person should be allowed to
remain in the court room.
(iii) It should be impressed upon the accused that he is no longer in police
custody.
(iv) The magistrate should then question the accused whether he has any com
plaint to make of ill treatment against the police or others responsible for his
arrest or custody, and shall place on record the questions put and the answers
given.
(v) If the prisoner makes an allegation of ill treatment ,the Magistrate shall
follow the same procedure as is laid down in paragraph 3(1) above.
(vi) If the accused does not complain of any illtreatment or improper conduct
or inducement on the part of the police, or if inspite of the alleged illtreatment,
misconduct or inducement, he adheres to his intention of making a confessional
statement ,the Magistrate should give the accused a warning that he is not bound
to make the confession and that ,if he does so,it will be taken down and may
thereafter be used as evidence against him. A note of the warning given to the
accused should be kept on record.
(vii) Thereafter ,the Magistrate should give the accused a reasonable time,which
should ordinarily not be less than 24 hours, for reflection in circumstances in
which he would be free from the influence of the police and any other person
interested in having the confession recorded.
(viii) After the accused is produced before the Magistrate again ,it should be
ascertained from him whether he is willing to make a confession. If he expresses
his desire to confess ,all police Officers should be removed from the Courtroom,
unless ,in the opinion of the Magistrate, the duty of ensuring his safe custody
cannot safely be entrusted to other attendants. In that case, only the minimum
number of police Officers necessary to secure the safe custody of the accused
person should be allowed to remain in the Courtroom. In any case it is not
desirable that the police Officer making the investigation should be present.
ix. The Magistrate should then question the accused person as to the length
of time during which he has been in the custody of the police . It is not sufficient
to note the date and hour recited in the police papers, at which the accused person
is said to have been formally arrested.
x. The provisions of sections 163 and 164 of the Code of Criminal Procedure ,
1973 ,should be carefully attended to. The first clause of section 163,taken with
section 24 of the Indian Evidence Act, provides that if a confession is caused
by any inducement ,threat or promise ,offered or made ,or caused to be offered
or made by any police Officer or person in authority in reference to the charge
against the accused person, then ,if in the opinion of the Court, the inducement
threat or promise was sufficient to give the accused person grounds ,which would
appear to him reasonable ,for supposing that by making the confession he would
gain any advantage or avoid any evil of a temporal nature in reference to the
proceedings against him and unless in the opinion of the Court lthe impression
caused by any such inducement , threat or promise ,has been fully removed ,such
confession is irrelevant, that is ,it cannot be used as evidence in any criminal
proceeding.
xi. Under clause (2) of section 163 ,for a confession of an accused person made
in the course of a police investigation to have any value ,it must be one which
the accused person was disposed to make of his own free will. Before recording
any such confession,the Magistrate is bound to question the accused person,and
unless upon that questioning he has reason to believe that the confession is
voluntary ,he cannot make the memorandum at the foot of the record . He cannot
say “I believe that this confession was voluntarily made” unless he has questioned
the accused person ,and from that questioning has formed the belief not a
doubtfull
attitude of mind, but a positive belief that the confession is a statement which
the accused person was disposed to make of his own free will.
xii.Before recording a confession,the Magistrate should question the accused
with a view to ascertaining the exact circumstances in which his confession is
being made and the connection of the police with it under clauses (iv), (vi),(x)
and (xi) above. In particular, where more than one accused is involved in the
case, he should question the accused whether he has been induced to make a
confession by promises to make him an approver in the case. Anything in the
nature of crossexamination of the accused is to be deprecated. It should ,however,
be the endeavour of the Magistrate ,without having recourse to heckling or
attempts to entrap the accused, to record the statement with as much detail as
possible regarding the circumstances under which the confession was being made,
the extent to which the police had anything to do with the accused prior to his
offer to make a confession ,as well as the fullest possible particulars of the
incidents
to which the confession relates. These details are important as they furnish the
material on which the value of the confession is to be estimated; and the greater
the detail,the greater the chances of a correct estimate . Every question and every
answer should be recorded in full.
xiii.The Magistrate should add to the certificate required by section 164
the Code of Criminal Procedure ,1973 a statement in his own hand,of the grounds
on which he believes that the confession is genuine ,the precautions which he
took to remove the accused from the influence of the police, and the time ,if any ,
given to the accused for reflection.
xiv.Attention of the Magistrates is drawn to Section 164(3) of the Code of
Criminal Procedure ,1973 which lays down that if the person appearing before
the Magistrate refused to make a confession ,the Magistrate shall not authorise
the detention of such person in police custody.
xv.Attention of the Magistrates is invited to sections 281 and 318 of the Code
of Criminal Procedure ,1973, and to the following important observations made
by the Supreme Court in the decision reported in A.I.R.1957 S.C.637 (Sarwan
singh Rattan Singh versus State of Punjab) under the head (h):
“(h) Duty of the Magistrate in recording statement under section 164(3)
of the Code of Criminal procedure ,1898 (Corresponding Section 164(2) of the
Code of Criminal Procedure ,1973).
The act of recording confessions under section 164 of the Code of Criminal
Procedure is a very solemn act and in discharging his duties under the said
section,the Magistrate must take care to see that the requirements of Sub
section (3) of Section 164 are fully satisfied. It would of course be necessary in
every case to put the questions prescribed by the High Court...............................
but the questions intended to be put under Subsection (3) of section 164 should
not be allowed to become a matter of mere mechanical inquiry. No element
of casualness should be allowed to creep in and the Magistrate should be fully
satisfied that the confessional statement which the accused wants to make is in
fact and in substance voluntary . The whole object of putting questions to
an accused person who offers to confess is to obtain an assurance of the fact that
the confession is not caused by any inducement ,threat or promise having
reference to the charge against the accused person as mentioned in section 24 of
the Evidence Act ”.
xvi.Before actually recording the confession in the prescribed form ,the follow
ing Government instructions issued in Government Circular, Home Department ,
No. PRO .2360/12501IX(1), dated the 16th March 1963 ,should also be
followed
scrupulously:
“(5) A duty is cast on the Magistrate to fully satisfy himself that no such
inducement ,threat or promise is given to the accused person. For that purpose,
when the accused is again produced bere the Magistrate after the time given
for reflection is over, the Magistrate has again to ascertain from the accused
whether he has any complaint to make of illtreatment against the police or others
responsible for his arrest or custody and then he has to caution him again that
he is not bound to make confession and that if he does so it would be taken
down and may thereafter be used as evidence against him. He must ,by putting
questions, try to ascertain whether the accused has agreed to make the confession
because he is under the impression that he would gain any advantage and whether
such impression has been caused by an inducement ,threat or promise . Before
recording any such confession,the Magistrate is bound to question the accused
person, and unless upon such questioning he has reason to believe that confession
is voluntary, he cannot make a memorandum at the foot of the record to effect:
“ I believe that this confession was voluntarily made.” Thus, a great responsi
bility is thrown on the Magistrate while recording confession and it is not
desirable that he should observe the formalities only given in the printed form
but he should observe the spirit and for that purpose he should not be a hurry in
starting to record the confession but he should put forward every endeavour to
satisfy by fully questioning the accused as to whether he is making the confession
voluntarily. With this object in view ,he should put as many as questions as
possible and those questions will be of the following type:
(1) Why do you want to make a confession ?
(2) Have you any complaint to make of illtreatment against the police or
others responsible for your arrest or custody ?
(3) Has anybody impressed upon you that by making a confession you
would be set free or you would be given lesser punishment ?
(4) Has the police or any person in authority offered you any inducement for
making this confession ?
(5) Has the police or any person in authority given you any threat in conse
quence of which you intend to make this confession ?
(6) Has the police or any person in authority given you any promise as
a result of which you want to make the confession ?
(7) I had given you time for reflection and do you feel that now you have
fully reflected and now you are prepared to make confession not because
somebody has asked you to do so, but because you have chosen to do so
voluntarily and of your own freewill ?
(8) Do you realise that in law you are not bound to make a confession and
that if you do so, I shall take it down and the same will be used as evidence
against you ?
(9) Do you realise that I am not a part and parcel of the police machinery
and that I am a Magistrate to whom you can explain your difficulties and
grievances freely before you finally make up your mind to give the confession ?
(10) Do you want to open your heart and disclose to me your difficulties
and grievances ,if any ?
(11) Do you realise that I am not here to force you to make confession but
I am here to find out whether you want to make a confession of your own
free will and voluntarily ?
“(6) Thus, after fully satisfying himself that the accused wants to make
a confession voluntarily without any inducement, threat or promise ,the Magi
strate should proceed to record the confession. Such statement should be
recorded as provided in section 164 read with section 364 of the Code of Criminal
procedure (vide Appendix II hereof ) and the Magistrate should see that each
and every requirement of these sections is scrupulosly met with. As far as
possible ,such statement should be recorded in the language of the accused and if
that is not practicable ,then in the language of the Court or in English ; and such
record shall be shown or read out to the accused or ,if he does not understand
the language in which it is written ,shall be interpreted to him in the language
in which he understands ,and he shall be at liberty to explain or add to his
answers. Every question put to the accused and every answer given by him
shall be recorded in full. In order to obtain clarification, the Magistrate may
put him relevant questions but such questions shall not be in the nature of
crossexamination. When the record is complete ,it shall be signed by the
accused and the Magistrate who shall certify under his own hand that the exami
nation was taken in his presence and hearing and that record contains a full and
true account of the statements made by the accused. At the foot of such state
ment ,the Magistrate shall make a memorandum to the following effect:
“ I have explained to ....................................................................................that
he is not bound to make a confession and that,if he does so, any confession
he may make be used as evidence against him and I believe that this confession
was voluntarily made. It was taken in my presence and hearing ,and was read
over to the person making it and admitted by him to be correct , and it con
tains a full and true account of the statement made by him.”
(7) The Magistrates should bear in mind that failure on their part to take
immediate steps towards recording the confession of the accused on receipt of
a “Yadi ” from the Investigating Officer often damages the prosecution case
and ,as such ,the priority should always be given to the recording of confessions”.
(xvii) The confession should be recorded in the following form :
FORM OF RECORDING CONFESSION
Before Shri...................................................................................................................
Magistrate of the First Class,Taluka..............................District .................................
(1) The accused .......................................................................................s/o...............
age about.................years........................is brought by...............................................
Police Head Constable/Sub Inspector before me at my Court ...................................
at.....................a.m./p.m to have his confession recorded ,a letter/memo is given to
me dated...............................from the ......................................which is attached
to the record.
................................have ascertained that the offence was committed at (place)
........................................on .........................................................................(day)
at........................a.m./p.m.
2. The accused is placed in custody of my peon/Armed police
Constable ..............
...........................................and the police (sub) Inspector /Head
Constable is
directed to leave the premises. I have satisfied myself that there is
no policeman
in the Court or in any place where the proceeding could be seen or
heard except
such armed police,not concerned in the investigation of the crime,
as are necessary to guard the accused.
N.B.Every question and every answer should be recorded in full.
The signature or mark of the accused person must be affixed to the confession
The Magistrate must make the declaration at the foot of the record of the confession
required by section 164(3) of the Code of Criminal Procedure ,1973 and clause
xiii.above.
3. The accused is informed that he is no longer in police custody ,and is
asked
whether he has to make any complaint of illtreatment ,against the police
or others
responsible for his arrest or custody. He replies:
PART I
Question No. 1 – I am a Magistrate and have no concern with the police. Have
you understood ?
Answer
Question No. 2 – You are now no longer in police custody . Have you under
stood ?
Answer
Question No. 3 Have you any complaint of illtreatment against the police or
other persons responsible for your arrest or custody ?
Answer
Question No. 4 I desire to examine your person. Do you consent to it ?
Answer
The result of the examination is this ,namely:
Question No. 5 Do you wish to make any statement ?
Answer
Question No. 6 You are not bound to make a statement or there is no compul
sion that you should make a statement . Have you under
stood ?
Answer
Question No. 7. If you make a statement then it will be taken down and it may
be used against you as evidence . Have you understood this ?
Answer
Question No. 8. Hereafter you will not be kept in the custody of the police .
Have you understood ?
Answer
Question No. 9. Have the police or any other person threatened you to make
a statement ?
Answer
Question No. 10. Have the police or any other person promised you that lesser
punishment will be awarded to you if you make a statement
or that you will be acquitted ?
Answer
Question No. 11. Have the police or any other person given you any allure
ment to make statement ?
Answer
(In case there are other coaccused ).
Question No. 12. Have the police or any other person given you promise that
if you make a statement then you will be made witness for
the prosecution in the case ?
Answer
Question No. 13. Do you still desire to make a statement ?
Answer
Question No. 14. When did it first occur to you that you should make a confess
ion and why did it occur to you ?
Answer
Question No. 15. Why are you making a confession ?
Answer
Question No .16 Before you make any statement you are given 24 hours time
for reflection . You are kept in Magisterial custody and
you will not be kept in police custody. Have you under
stood all this ?
Answer
The accused is informed that he jis given 24 hours time for reflection .
He is further informed that he is kept in Magisterial custody and
not in police custody, and is accordingly remanded to Magisterial
custody. He shall again be produced before me on ..................... at
a.m./p.m.
(Signature ),......................
Magistrate .
Dated
PART II
5. The accused is brought before me again on ..................................
at..........................
a.m./p.m in custody of ............................
I have satisfied myself that there is no policeman in the Court or in any
place
whence the proceedings could be heard or seen,except such armed
police,not con
cerned in the investigation ,as are necessary to guard the accused .
10.The accused is asked details as to the length of time during which and the
place
where he has been in custody or surveillance of the police . He replies as
follows:
Question No. 1. When were you arrested by the police ?
Answer
Question No. 2 – At what place the police arrested you ?
Answer
Question No. 3 – Were you kept by the police under surveillance ? If yes ,since
when and where ?
Answer
Question No. 4 – Since when you are in the custody of the police ?
Answer
Question No. 5 At what places you were kept by the police ?
Answer
7. Under clauses (iv),(vi),(x) and (xi) of paragraph 18 of Chapter I of the
Criminal
Manual ,the accused is examined as follows in order to ascertain whether ,
he
is disposed to make a confession of his own free will :
Question No. 6. Do you wish to make a statement ?
Answer
Question No. 7. You were given 24 hours time for reflection . Was it sufficient ?
Answer
Question No. 8 – You are not bound to make a statement and there is no com
pulsion that you should make a statement . Have you
understood this ?
Answer
Question No. 9. If you make a statement then it will be recorded and the same
is likely to be used as evidence against you. Have you
understood ?
Answer
Question No. 10. Even if you refuse to make a statement you will not be kept in
police custody. Have you understood this ?
Answer
Question No. 11. Have the police or any other person threatened you to make
a statement ?
Answer
Question No. 12. Have the police or any other person promised you that lesser
punishment will be awarded to you or you will be acquitted
if you make a statement ?
Answer
Question No. 13 Have the police or any other person promised you that if
you make a statement you will be made a witness for the
prosecution ?
Answer
Question No. 14 Have the police or any other person given you any allurement
to make a statement ?
Answer
Question No. 15. Are you now willing to make a statement voluntarily and of
your own freewill ?
Answer
Question No. 16 – You can tell me your complaints or difficulties ,if any ,Have
you understood ?
Answer
Question No. 17. I am not here to record your statement by compulsion. I am
here to record your statement if you are willing to make it
voluntarily and of your own freewill. Have you under
stood this ?
Answer
After satisfaction that the accused is making the statement voluntarily
and of his own free will, I have recorded it as follows :
DO NOT ADMINISTER OATH.
Certificate I(In the handwriting of the Magistrate )
“Certified that the above confession was recorded in my presence and hearing and
the record contains a full and true account of the statement made by the accused ”.
(Signature )......................
Magistrate
Dated:
Certificate II :
“I have explained to ................(Name) that he is not bound to make
confession and that, if he does so ,any confession he may make may be used as
evidence against him and I believe that this confession was voluntarily made .It was
taken in my presence and hearing and was read over to the person making it and
admitted by him to be correct and it contains a full and true account of the statement
made by him.”
(Signature )......................
Magistrate
Dated:
Certificate III ( In the handwriting of the Magistrate ).
“I certify that on the following grounds ,I believe that the confession is genuine ;
(i)
(ii)
(iii)
I had taken the following precautions to remove the accused from the influence of
police :
(i)
(ii)
(iii)
I had given the accused ............ hours time for reflection before recording
the confession.”
(Signature )..........................
Magistrate
Dated:
8. The accused after his confession has been recorded by me, is remanded to
Judicial Custody and forwarded to the Sub-Jail.
(Signature )....................
Magistrate
Dated :
(The above form does not fetter the discretion of the Magistrate to ask such other
questions as are considered necessary in a particular case, but incriminating questions
should never be asked)
19.After a prisoner has made a confession ,he should ordinarily be committed
to jail ,and the Magistrate should note on the warrant for the information of
the
Superintendent of the Jail concerned, that the prisoner has made a
confession.
22.It is not feasible absolutely to prohibit the return of a prisoner to police
custody after he has made a confession. An absolute prohibition of
remands to
police custody in such cases is impracticable ,since the prisoner may be
required to
identify persons or property ,to assist at the discovery of property or,
generally to be present while his statement is being verified. But it is
desirable that discretion should be used in the exercise of the power to
remand,and the following principles are accordingly laid down for the
guidance of the Magistrate :---
(a) A remand to police custody should not be made unless the officer making
the application is able to show good and satisfactory grounds for it ; a general
statement that the accused may be able to give further information should not be
accepted as being in itself a sufficient reason for remand.
(b) If the object of the remand is the verification of the prisoner’s statement ,
he should ordinarily be remanded to Magistrerial custody.
© The period of the remand should always be as short as possible .
(d) A prisoner who has been produced for the purpose of making a confession
and has made a statement ,which from the point of view of the prosecution ,is
unsatisfactory ,should in no circumstances be remanded to police custody.
21.The police may be permitted to take copies of confessions recorded by
Magistrates.
23.Any instance of misconduct or abuse of authority by a police Officer ,
which
may come to the notice of a Mgistrate ,shall be reported to the Sessions
Judge to
whom the Magistrate is subordinate . The Sessions Judge, on receipt of
such a report ,should bring the matter to the notice of the District
Magistrate for such action as he may deem fit. In cases of gross
misconduct ,if the Sessions Judge finds
that appropriate action has not been taken against the Officer concerned, he
may bring the matter to the notice of the High Court.
23.The following orders issued by Government are reproduced for the infor-
mation of the Magistrates:---
a remark or give a reply to the question No. 4 of the summary in Form ‘E ’( given
below) to the effect that the case is “ not investigated by the police acting under
Section 157(1) (b) of the Code of Criminal Procedure with Magistrate ’ s approval .”
The Magistrate should also include in his summary the value of property alleged
to have been stolen in such cases. In cases wherein the investigation was refused
on the ground that the complaint was of a civil nature ,it is not necessary to include
the value of property in his summary.
(5) The Criminal cases should be classified as follows :---
Class ‘A’ ca ses—T he cases which are (i) ‘T RUE’ a nd (ii) wherein an accused is
tried and in the absence of conclusive evidence ,is acquitted.
Class ‘B’ ca ses—Whe rein no offence has been committed at all either by the
accused or by any one else, but wherein the complaint is found to be “ false and
maliciously false.”
Class ‘C’ca ses---- Wherein no offence has been committed at all either by the
accused or by any one else, but wherein the case is found to be “ne ither true nor
false” or “fa lse but not maliciously false .”
“Non—Cognizable ”cases---The cases, in which the accused are convicted for
non-cognizable offences, should be classed as “ Non-cognizable ”. The c ases ,
in which the police report discloses commission of only non-cognizable offences,
should also be classed as “ Non-cognizable ” .
(6) In cases wherein offences have been compounded, it is not proper to
characterise the complaints as compounded , In such cases, the Magistrates
should enter remark against question No. 3 of the Summary in Form E to the effect
that the offence complained of has been compounded. Similarly, in cases wherein
the accused is reported to be dead, or suffering from lunacy or absconding , the
Magistrates should enter a remark to that effect against question No. 3 of the
Summary in Form E.
(7) In cases referred to the police for enquiry and report under Sections 156 &
and 202 of the Code of Criminal Procedure ,1973 ,the Magistrates should send
summaries of their final orders in the prescribed forms direct to the police Stations
concerned for their record.
(8) In cases in which the offences complained of are punishable (i) under Sections
161, 165 ar 165-A of Indian Penal Code or under Sub-section (2) of Section 5 of
the Prevention of Corrupiton Act, 1947 ; (ii) or any conspiracy to commit or any
attempt to commit or any abetment of any of the offences specified in clause (i),
and (iii) any other offence connected with any of the offences specified in (i) and
(ii) ,the Special Judges appointed under Section 6 of the Criminal Law Amendment
Act,1952 for trial of such offences,should send their Summaries of their final orders
to the police Station Officers or the Officers of the Anti- Corruption Bureau ,
who conducted the investigation and sent in their reports to him.
(9) The attention of the Magistrates is drawn to the decision of the Supreme
Court reported in (1970) 3- S.C.R. 716 (R.N. Chatterji Vs Havildar Kuer Singh),
wherein it is held that the provisions of the Code of Criminal Procedure ,1973
do not empower the Magistrates to ask the police to submit a chargesheet. If,
however ,the Magistrate is of opinion that the report submitted by the police
requires further investigation, the Magistrate may order investigation under
Section 156(3) of the Code of Criminal Procedure ,1973 . Directing a further
investigation is entirely different from asking the police to submit a chargesheet.
Further more, Section 190(1) © of the Code of Criminal Procedure ,1973 ,empowers
the Magistrate to take cognizance of an offence notwithstanding a contrary
opinion of the Police.
----------------------------
FORM ‘E ’
APPENDIX ‘E ’
(Counter-foil of Form ‘E ’ not typed as it is in Marathi)
Summary of Magistrate’s Final Order
------------------------------------------------------------------------------------------------------------
Police Station Number of case Complaint’s Magistrate’s Serial No of
as entered in sub- Name Case No. Summary
Inspector’ s
Register.
------------------------------------------------------------------------------------------------------------
1. Is the case cognizable or non-
cognizable ? If non-cognizable ,
the remaining portion of the
Form need not be filled up.
2. Section of Penal Code or other
enactment covering the case.
3. To which of the following three
classes does the complaint be-
long ? Viz. (a) true; (b) mali-
ciously false ; © not true and
not maliciously false.
4. was the case investigated by the
police or taken up and disposed
of by the Magistrate direct.
------------------------------------------------------------------------------------------------------------
J 4641—3
------------------------------------------------------------------------------------------------------------
Police Station Number of case Complaint ’s Magistrate ’s Seril No. of
as entered in Sub- Name Case No. summary
Inspector’ s
Register .
------------------------------------------------------------------------------------------------------------
5. Number of Accused :--
(a) Arrested by the police (Dis-
strict or Village); suo-motu.
(b) Arrested otherwise than by
the police (District or Villa-
ge) ; suo-motu .
© Appearing before Magistrate
in answer to Summons.
6. Disposal of Accused and section
of the Code of Criminal Proce-
dure, 1973 under which dis-
posed of :--
(a) of those arrested by Convicted.
Police suo-motu. Acquitted
and Dis-
charged .
(b) Of those arrested Convicted .
Otherwise. Acquitted
and Dis-
charged.
© Died, escaped, transferred or
treated as lunatics.
7. Value of Property stolen ...
Value of Property recovered ....
Camp
APPENDIX F
Summary of Amendment of Final Order on Appeal or Revision
-----------------------------------------------------------------------------------------------------------
Police Station Serial No.of Original Serial No. of Summary
Summary of Amendment
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Camp
J 4641—3 a
CHAPTER II
PROCESS AND ATTENDANCE OF PRISONERS AND WITNESSES
1. The following Rule made by the High Court of Judicature at Bombay, under section 20
of the Court Fees Act(VII of 1870 ), confirmed and sanctioned by the then Government
of Bombay and sanctioned by the Governor General of India in Council, is continued to
be in force under section 49 of the Bombay CourtFees Act,1959 (Bombay Act No.
XXXVI of 1959).
The fees chargeable for serving and executing processes issued by Criminal Courts in the
case of offences other than offences for which Police Officers may arrest without a
warrant, shall be those shown in the table appended hereto:
TABLE
In all cases
(1) For every summons of notice .. ..Rs. 0.30
(2) For every warrant of arrest .. ..Rs. 1.25
(3) For every proclamation for absconding party or witness ..Rs. 1.25
(code of Criminal Procedure,1973, Section 82).
(4) For every Warrant of attachment .. ..Rs. 1.25
Provisos: No fees shall be levied on any process issued upon the complaint of any public
officer acting as such public officer.
The Court may remit the process fees in any case, in whole or in part, whenever the Court
is satisfied that the complainant or the accused has not the means of paying them.
Note: (1) Fresh fee is not chargeable in the case of reissue or when a warrant is issued
under section 87(b) of the Code in Criminal Procedure,1973.
Note: (2) Process fees are leviable from Municipalities in respect of summonses and
warrants issued in cases falling under Section 296(3) of the Maharashtra Municipalities
Act,1965.
2. Fees recovered on account of process in magisterial courts should be entered in a
separate Register to be maintained for the purpose in the following form:
Process and Process Fees
Serial No. Case No. Date of Amount Summons, Date of issue
receipt of Received Warrant, of process
Process Fees Notice
1 2 3 4 5 6
Name of the Date fixed To whom Served on If not served Remarks
person sent for or served but
against service. appearance
whom not made,
issued. further
action taken.
7 8 9 10 11 12
2A. In exercise of the powers conferred by subsection (I) of section 62 of the Code of
Criminal Procedure 1973 ( 2 of 1974 ), in its application to the State of Maharashtra, the
Government of Maharashtra hereby makes the following rules, namly :
1. These rules may be called the Maharashtra Service of Summons by an Officer of
the Court or other Public Servant Rules, 1986.
2. In these rules, unless the context requires,
(a) “ Bailiffs' Manual ” means the Bailiffs' Manual issued by the High Court of
Judicature, Bombay for the guidance of bailiffs;
(b) “ Civil Manual ” means the Civil Manual issued by the High Court of
Judicature, Bombay, Appellate Side, for the guidance of the Civil Courts and
officers subordinate to it;
(c) “ Code ” means the Code of Criminal Procedure 1973 (2 of 1974).
3. In any proceedings initiated on a complaint or application under the Code, if the
Court directs that the summons shall be served by the Bailiff, if any appointed on
the establishment of the Court issuing the summons or of any other Court at the
place of sitting of such Court, then such summons shall be served by such Bailiff
either in addition to or in lieu of the service of summons by the Police Officer as
the Court issuing the summons may order.
4. Subject to the special directions, if any, issued by the Court issuing the summons,
the Bailiff shall serve the summons in accordance with the provisions of the Code
in this behalf and, save otherwise expressly provided in these rules, in accordance
with the provisions of the Bailiffs' Manual and the Civil Manual in so far as they
are not inconsistent with the provisions of the Code.
5. It shall be the duty of the Bailiff to serve the summons without the aid of the
persons connected with the proceedings. However, in case where it is necessary
for him so to do, the Bailiff may seek the assistance of a Village Officer, a Police
Officer or any other person not connected with the proceedings.
6. The Senior Clerk or any other officer of the Court as th eCourt may direct in tis
behalf,shall control, supervise and scrutinize the work relating to the service of
summons by the Bailiff and shall guide him and report the latches, if any, noticed
by him to the Court in accordance with the rules contained in the Civil Manual.
7. Where the Court issuing the summons directs that the summons shall be served by
an Officer of that Court or any public servant other than a Bailiff, then these rules
shall also apply mutaits mutandis to the service of summons by such Officer or
other public servant as they apply in relation to the service of the summons by the
Baillif.
3. The members of the Scheduled Tribes specified in the Schedule annexed hereto are
exempted from payment of process fees. This rule shall be effective retrospectively from
and inclusive of the 17th day of November 1960 and shall remain in force until further
orders.
SCHEDULE
PART IX MAHARASHTRA
1. Andh.
2. Baiga.
3. Barda.
4. Bavacha,Bamcha.
5. Bhaina.
6. BhariaBhumiia, Vhuinhar Vhumia,Pando.
7. Bhattra.
8. Bhail,Bhil Garasia,DholiVhil,DungriBhil,Dungri Grasia,Mewasi Bhil, Rawal
Bhil,Tadvi Bhil,Bhagalia, Bhilala, Pawra, Vasava, Vasave.
9. Bhunjia.
10. Binjhwar.
11. Birhul, Birhor.
12. Chodhara (Excluding Alola, Amravati, Bhandara, Buldhana, Chandrapur,Nagpur,
Wardha,Yatmal, Aurangabad, Beed, Nanded, Osmanabad and Parbhani Districts),
13. Dhanka,Tadvi,Totaria, Valvi.
14. Dhanwar.
15. Dhondia.
16. Dubla,Takavua,Galpati.
17. Gamit Ggamta,Gavit,Mavchi,Padvi.
18. Gond Rajgond,Arkh,Arrakh,Agaria,Asur,Badi Maria,Bada Maria, Bhatola, Bhimma,
Bhuta, Koilabhuta,Koilabhyti,Bhar,Disonhorn Maria, Chota Maria,Dandami Maria, Duru
Dhurwa,Dhoba,Dhulia,Dorla, Gaiki,Gatta,Gatti,Gaita,Gond Gowari, Hill Maria, Kandra,
Kalanga, Khatola, Koitar,Koya,Khirwae,Kucha Maria,Kuchaki Maria,
Madia,Maria,Mana, Mannewar, Moghya, Moghya,Mogia, Monghya,Mudia, Muria,
Nagarchi, Naikpod, Nagwanshi, Ojha,Raj,Sonjhari Jhareka,Thatia, Thotya,Wade Maria,
Vade Maria.
19. Halba, Halbi.
20. Kamar.
21. Kathodi,Katkari Dhor Kathodi, Dhor Kathkari, Son Kathodi, Son Katkari.
22. Kawar, Kanwar, Kaur, Cherwa Rathia, Tanwar, Chattri.
23. Khairwar.
24. Kharia.
25. Kokna, Kokni Kukna.
26. Kol.
27. Kokam, Mannervarlu.
28. Koli,Dhor,Tokre Koli,Kolcha,Kolgha.
29. Koli Mahadev,Dongar Koli.
30. Koli Malhar.
31. Kondha, Kond, Kandh.
32. Korku, Bopchi, Mouasi, Nihal,Nahul, Dondhi,Bondeya.
33. Koya,Bhine Koya Rajkoya.
34. Nagesia, Nagasia.
35. Naikda,Nayaka,Vhokivala,Nayaka,Kapadia nayaka, Mota Nayaka, Nana Nayaka.
36. Oraon, Dhangad.
37. Pardhan, Pathari, Saroti.
38. Pardhi, Advichincher, Phans Pardhi, Phanse Pardhi, Langoli Pardhi, Bahelia,
Bahellia, Chita Pardhi, Shikari, Tankankar, Takia.
39. Parja.
40. Patelia.
41. Pomla.
42. Rathawa.
43. Sawar, Sawara.
44. Thakur, Thakar Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar.
45. Thoti (in Aurangabad, Beed, Nanded, Osmanabad and Parbhani Districts and Rajura
Tahsil of Chandrapur Districts.)
46. Varli.
47. Vitolia, Kotwalia, Barodia.
4. Summonses issued by Magistrates for service on witnesses living in Greater Bombay
should ordinarily be sent to the Chief Metropolitan Magistrate, and not to the
Commissioner of Police at Bombay, for such service. (Section 67 of the Code of Criminal
Procedure,1973).
5. In pursuance of section 105 of the Code of Criminal Procedure,1973, summonses to
and warrants of arrests of any accused persons residing in the State of Jammu and Kasmir
should be sent to the presiding Officers of the Courts of that State as is done in the rest of
India. Likewise, Summonses to and warrants of arrests of accused persons received from
the Courts of the State of Jammu and Kashmir should be executed by the internal Courts.
No request for extradition should in future be made to the Government of Jammu and
Kashmir nor such request from that state entertained.
3.Authority and conditions for payment of expenses to witnesses.:
(1) Payment, on the part of the State Government of the reasonable expenses of witnesses
as provided in these rules may be ordered:
(a) by the High Court or a Court of Session in any case which comes before such Court;
(b) by a Magistrate
(i) In every case in which the offence or any of the offences with which the accused is
charged, is a nonbailable offence;
(ii)in all cases in which any person is summoned as a witness under section 311 of the
Code; and
(iii) in cases in which the offence or all of the offences which which the accused is
charged is, or are, bailable, only if the prosecution has been instituted or is being carried
on by the Police or by, or under the orders of sanction of the Government, or of any
Judge, Magistrate or other public officer, or if the Magistrate considers that the
prosecution is directly in furtherance of the interests of the public, or that the person by
whom payment is to be made is in indigent circumstances;
Provided that, no such payment, on the part of the State Government, shall be made to
any witness when the expenses of th attendance of such witness have been deposited in
Court under Subsection (3) of Section 264 or subsection (3) of section 243;
Provided further that, the Senior Clerk or Sheristedar in the Courts of the Magistrates
may, after obtaining specific orders of the Court in each case and subject to the
conditions hereinafter contained, make payment of such expenses to witnesses.
(2) The court may refuse the payment of such expenses
(a) to any complainant, whose complaint has been declared to be false or frivolous;
(b) to any witness, whose evidence the Court does not consider to be substantially true, or
© to any complainant or witness, who without sufficient cause remains absent on any day
fixed for the hearing and whose presence is secured by the issue of any coercive process.
4. Diet allowance.(1)As a general rule, the diet allowance to be paid to witnesses shall
be varying according to the circumstance but shall not exceed the daily average wage of
the class to which the witness belongs or the maxima prescribed below, whichever is less,
namely:
(1) (2)
Class I.
Professional men of high position, Members of Parliament and of Rs. 10 per diem.
the State Legislatures and of the local bodies (other than village
Panchayats), large land owners, owners of big business
organization, upper grade employees in business organizations and
Corporations and in local bodies aforesaid and Class I Government
Officials who are required to attend the Court in Their Private
Capacity.
Class II
Ordinary professional and business men, members of village Rs. 8 per diem
panchayats, land owners other than small farmers, junior
employees in business organizations, corporations and in local
bodies nor referred to in Class I, and Class II Government Officials
who are required to attend the Court in their private capacity.
Class III
Artisans, clerks, small farmers, village Officers, lower grade Rs. 6 per diem.
employees in business organizations, corporations and in local
bodies not referred to in Class I, employees of village panchayats
and Class III Government Officials who are required to attend the
Court in their private capacity.
Class IV
Labourers, petty shopkeepers, pedlers and persons other than those Rs. 5 per diem.
in the above classes, and Class Iv Government servants who are
required to attend the Court in their private capacity.
(2) Diet allowance may be paid only for the day or days of Court attendance and for the
minimum period required preliminary to such attendance and immediately thereafter.
(3) Diet allowance shall ordinarily be admissible only to those witnesses who have had to
travel more than three miles in order to attend the Court to give evidence. The daily
labourers, agricultural or otherwise, petty traders and hawkers and other persons who
have to depend upon daily wages or earnings and whose daily wages or earnings do not
exceed Rs. 10 per day in Greater Bombay and cities of Pune and Nagpur and Rs. 8 per
day elsewhere, and monthly wage earners in receipt of salary not exceeding Rs.300 per
month in Greater Bombay and cities of Pune and Nagpur and Rs. 300 per month
elsewhere, may, in the discretion of the Court, be paid diet allowance irrespective of the
distance travelled by them.
5. Travelling expenses (1) Travelling expenses to witnesses shall be granted according
to the rates specified below, in all cases in which the Court deems such expenses to be
reasonable, having due regard to the distance to be traversed and the position and
circumstances of the witness, namely :
(a) When the journey is by road .. The actual expenses incurred,
provided the same are
reasonable.
(b) when the journey is wholly or partly
by rail or steamer
(i) if the witness belongs to Class I as First Class Fare
specified in rule 4.
(ii) if the witness belongs to Class II Second Class Fare
or III as specified in rule 4.
(iii) if the witness belongs to Class IV as Second Class Fare
specified in rule 4.
(2) Notwithstanding anything contained in rule 4, in cases where no transport facilities
are available enabling a witness to attend the Court and the witness has to walk a long
distance from his place of residence to the Court, the Court may sanction increased diet
allowance taking into consideration the distance travelled and the number of days
required for attending the Court.
6. Allowance to witnesses from the mofussil attending Criminal Courts in Greater
Bombay (1) Notwithstanding anything contained in the foregoing provisions, witnesses
who are residing in the mofussil and are summoned to attend the High Court, the Court of
Session for Greater Bombay or a Metropolitan Magistrate's Court shall be paid expenses
according to circumstances, but at rates not exceeding the following maxima, namely :
(a) if the witness belongs to Class I as specified in (i) First Class railway or
rule 4, steamer fare;]
(ii) Rs. 12 per diem for boarding
expenses; and
(iii) Rs. 4 for conveyance
charges for each day of
attendance.
(b) if the witness belongs to Class II or III as (i) Second Class railway or
specified in rule 4, steamer fare;]
(ii) Rs. 8 per diem for boarding
expenses; and
(iii) Rs. 2 for conveyance
charges for each day of
attendance.
(c) if the witness belongs to Class IV as specified (i) Second Class railway or
in rule 4, steamer fare;]
(ii) Rs. 6 per diem for boarding
expenses; and
(iii) Rs. 2 for conveyance
charges for each day of
attendance.
(2) Boarding expenses may be paid to any witness for the period of his stay in Greater
Bombay, as also for the period spend by him on his journey to and from Greater Bombay.
(7) Advance Payment – Travelling expenses may be paid to any witness in advance, i.e.
before he starts on his journey to the Court, if the Court considers that it is necessary to
do so.
(8) Treatment of peculiar cases Cases not covered by the provisions of rules 4, 5 and 6
may be dealt with on merits and at the discretion of the Court.
Payment of fodder and incidental charges to witnesses who produce animals
before the Court as Muddemal property, etc.
8. Whenever the expenses of Government Officer to whom the Bombay Civil Services
Rules apply, and who is summoned as a witness in his official capacity, have to be
deposited in advance in a criminal case, the term “expenses” should be interpreted to
mean the travelling and halting allowance admissible under the Bombay Civil Services
Rules.
(a) That the Court is satisfied that the accused on his discharge or acquittal will be under
the necessity of proceeding to some place not less than fifteen miles distant from the
Court.
(b) That the accused is unprovided with means sufficient for the expenses of his journey
to such place and his maintenance on such journey.
(c) That the amount given on account of daily expenses shall not exceed the rate of 25 P.
a day for the number of days which, in the opinion of the Court, will necessarily be
occupied in such journey, except that in the case of an accused person acquitted or
discharged by a Metropolitan Magistrate the rates shall not ordinarily exceed 25 P. a day,
provided the Magistrate may in his discretion allow the rates not exceeding two rupees a
day, having regard to the lass to which the accused belongs (vide classification of
witnesses in paragraph No.4), for the number of days which, in the opinion of the Court,
will necessarily be occupied in such journey.
(d) That if a portion of the journey can be made by railway or steamboat, a ticket of the
lowest class shall be given in addition to the sum allowed for daily expenses.
10. (a) If an Officer of the State of Assam attends any Criminal Court in the State of
Maharashtra as a witness, in a case in which Government is a party, to give evidence in
respect of facts which have come to his knowledge in the discharge of his official duties,
such Officer shall, on production of a certificate of attendance issued by such Court, be
paid travelling allowance and other expenses, if any, at the rates sanctioned by the
Government of Assam for the class of Officers to which he belongs, Subject to the
provisions of subparagraph (b) below, the charge on account of such expenses shall be
borne by the Government of Assam.
(b) If such Officer is an expert within the meaning of section 45 of the Indian Evidence
Act, 1872, or belongs to a Commercial Department of the Government of Assam, the
charge on account of such expenses, calculated at the rates referred to in Subparagraph
(a) above, shall be borne by the Government of Maharashtra.
The above arrangements are reciprocal.
(c) In exercise of the powers conferred by section 544 of the Code of Criminal Procedure,
1898 (V of 1898), in its application to the State of Maharashtra, and in supersession of
the Government of Bombay, Notification in the Home Department, No. PAL, 2354, dated
the 2nd May 1956 (except in so far as it relates to the State Government of Assam) and of
other notifications issued by the State Government under the said section and in force in
any part of the State of Maharashtra in so far as they relate to matters hereinafter
provided including the notification containing the Maharashtra Payment of Expenses to
OfficerWitnesses from other Government Rules, 1965, the Government of Maharashtra,
in accordance with the reciprocal arrangement arrived at with the Central Government
and the State Governments of Andhra pradesh, Bihar, Kerala, Madhya Pradesh, Madras,
Mysore, Rajasthan, West Bengal, Uttar Pradesh, Punjab, Orissa and Gujrat (hereinafter
referred to as 'the reciprocating Governments') by their Notification No.
PAL.2354/11240J, dated the 14th May 1965 in the Law and Judiciary Department, have
made the following rules, namely :
(1) These rules may be called the Maharashtra Payment of Expenses to Officer
Witnesses from other Government Rules, 1965.
(2) If an officer of any of the reciprocating Governments (not being an officer serving in
a Commercial Department or called as an expert within the meaning of section 45 of the
Indian Evidence Act, 1872) attends any Criminal Court in the State of Maharashtra as a
witness, in a case in which Government is a party, to give evidence in respect of facts
which have come to his knowledge in the discharge of his official duties, such officer
shall, on production of a certificate of attendance issued by such Court, be paid travelling
allowance and other expenses, if any, at the rates sanctioned by the Government under
whom he may be serving, for the class of officers to which he belongs. The charge on
account of such expenses shall be borne by the Government under whom such officer is
serving.
(3) If such officer attends any Criminal Court in the State of Maharashtra as a witness, in
a case in which Government is not a party, to give evidence in respect of facts which
have come to his knowledge in the discharge of his official duties, such officer shall be
paid by such Court travelling allowance and other expenses, if any, at the rates referred to
in rule 2; but the charge on account of such expenses shall be borne by the Government
of Maharashtra.
(d) The Government of Maharashtra by their Resolution in the Law and Judiciary
Department, No. PAL.2354/11240J, dated the 13th May 1965, have made the following
provisions :
In accordance with the reciprocal arrangements arrived at with the Central Government
and the State Government of Andhra pradesh, Bihar, Kerala, Madhya Pradesh, Madras,
Mysore, Rajasthan, West Bengal, Rajasthan, Punjab, Gujarat, Orissa and Uttar Pradesh,
the Government of Maharashtra is pleased to direct that whenever any Officer of any of
the abovementioned Governments, belonging to commercial departments or to the Class
of technical or expert witness within the meaning of Section 45 of the Indian Evidence
Act, 1872, is called for as a witness to give evidence before any Criminal Court in the
State of Maharashtra, charges on account of his pay for the period of his absence from his
headquarters on account of such Court attendance, shall be borne by the Government of
Maharashtra.
The expenditure involved should be met from the grants sanctioned for road and diet
money to witnesses under the head “21Administration of Justice”.
Payment of charges to Charitable Institutions in Criminal cases wherein
minor girls and grown up women appear as witnesses.
11. When minor girls and grown up women appearing as witnesses in Criminal cases are
detained in charitable institutions during the period of the trial of the case, pursuant to the
orders of the Court, the charitable institutions should be paid Rs.30 per month per girl or
woman, where these institutions have themselves to make both boarding and lodging
arrangements for girls and grown up women so detained. No charges generally be paid in
case where the girls and women are detained in charitable institutions and guardians are
there to look after their boarding arrangements. (vide G.R.,L. & J.D. No. CPR
3761/15791J, dated 12th May 1964).
Commissions
12. (a) Commissions for the examination of witnesses residing in the Country specified in
Column I of the Schedule annexed hereto, to be issued under the Code of Criminal
Procedure, 1973, (No. 2 of 1974), should be issued to the Courts of Judges or Magistrates
specified in the corresponding entry in column No. 2 of the said Schedule as having
authority in this behalf in that Country.
THE SCHEDULE
Country Courts, Judges or Magistrates.
1 2
(1) United Kingdom .. (a) The Supreme Court of Judicature at
the Royal Courts of Justice, London, in
case the witness resides in England; or
(b) The Supreme Court of Northern
Ireland, in case the witness resides in
Northern Ireland, or
(c) The Court of Sessions, Scotland, in
case the witness resides in Scotland.
(Government of India Notification, Ministry of Home Affairs, No. 20 (3)/55 Judl. II
(A), dated 5th May 1955).
(2) Federation of Malaya .. The Chief Justice of Federation of
Malaya.
(Government of India Notification, Ministry of Home Affairs, No. 20 (3)/55 Judl. II
(B), dated 5th May 1955).
(3) Union of Burma .. Court of any District Magistrate in the
Union of Burma within the local limits
of whose jurisdiction the witness
resides.
(Government of India Notification, Ministry of Home Affairs, No. 20 (3)/55 Judl. II
(C), dated 5th May 1955).
1 2
(4) Dominion of Canada .. Any superior Court in the Dominion of
Canada within the local limits of
whose jurisdiction the witness resides.
(Government of India Notification, Ministry of Home Affairs, No. 20 (3)/55 Judl. II
(D), dated 5th May 1955).
(5) Colony of Singapore .. The High Court in Singapore
(Government of India Notification, Ministry of Home Affairs, No. 20/4/55 Judl. II,
dated 6th September 1955).
Country Courts, Judges or Magistrates.
(6) Pakistan .. The Court of the District Magistrate or
Magistrate of the First Class within the
local limits of whose jurisdiction the
witness resides.
(Government of India Notification, Ministry of Home Affairs, No.F. 20 (3)J, II/55,
dated the 18th October, 1955).
(7) Australia .. (a) The Chief Justice of the Supreme
Court of the State in which the witness
resides, or
(b) The Judge of the Supreme Court of
the Australian Capital Territory,
Canberra, in case the witness resides in
that territory, or
© The Judge of the Supreme Court of
the Northern territory,Darwin ,in case
the witness resides in that territory .
(Government of India Notification, Ministry of Home Affairs, No. F. 13/1/58J, II (ii),
dated 20th August 1958)
(8) Ceylon .. The Supreme Court of Ceylon.
(Government of India Notification, Ministry of Home Affairs, No. F. 13/1/58J, II (i),
dated 20th August 1958)
(9) Mauritius .. The Supreme Court of Mauritius.
(Vide Government of India Notification, Ministry of Home Affairs, No. S. O. 884, dated
the 21st March 1963)
(11) Fiji .. The Supreme Court of Fiji.
(Vide Government of India Notification, Ministry of Home Affairs, No. S. O. 954, dated
the 26th March 1963)
Country Courts, Judges or Magistrates.
(12) Swaziland .. Chief Justice of Swaziland
(13) Gambia .. Chief Justice of Gambia
(Government of India Notification, Ministry of Home Affairs, Nos. S.O. 2656 and
2657, dated the 27th July 1964).
(14) United Arab Republic .. The Cairo Court of First Instance.
(Government of India Notification, Ministry of Home Affairs, No. S.O. 3490, dated the
2nd November 1965 as amended by Corrigendum No. S.O. 866, dated the 27th January
1966)
(15) Federal Republic of Germany .. (a) Landgericht, Bonn; or
(b) Amtsgericht, Bonn; or
(c) Staatsanwaltschaft; Bonn
(Government of India Notification, Ministry of Home Affairs, No. S. O. 3490, dated the
2nd November 1965 as amended by Corrigendum No. S.O. 866, dated the 27th January
1966)
(16) Sweden .. For details of 136 Courts of Sweden
mentioned in Notification, please see
Government of India, Ministry of
Home Affairs, Notifications Nos. S.O.
2548 and 2549, dated the 15th July
1970.
(b) The following Form “A” should be used for the issue of Commission in respect of all
the Countries mentioned in the preceding subparagraphs, except in the case of the
Colony of Singapore in respect of which Form “B” annexed hereto should be used.
FORM “A”
IN THE COURT OF
Commission to examine witness outside India [Section 285 (3) of the Code of Criminal
Procedure, 1973]
To,
Through the Ministry of External affairs, Government of India, New Delhi.
Judge
Judicial Magistrate
Metropolitan Magistrate.
FORM “B”
IN THE COURT OF
Commission to examine witness outside India [Section 285 (3) of the Code of Criminal
Procedure, 1973]
To,
WHEREAS it appears to me that the evidence of ____________________________ is
necessary for the ends of justice in case No. _______________ Vs. _________________
in the Court of __________________________________________ and that such witness
is residing within the local limits of your jurisdiction and his attendance cannot be
procured without unreasonable delay, expense or inconvenience, I
___________________ have the honour to request and do hereby request that for the
reasons aforesaid and for the assistance of the said Court, you will be pleased to summon
the said witness to attend at such time and place as you shall appoint and that you will
cause such witness to be examined upon the interrogatories which accompany this
commission (for viva voce).
Any party to the proceeding may appear before you by his counsel or agent or, if not in
custody, in person and may examine, crossexamine or reexamine (as the case may be )
the said witness.
And I further have the honour to request that you will be pleased to cause the answers of
the said witness to be reduced into writing and all books, letters, papers and documents
produced upon such examination to be duly marked for identification and that you will be
further pleased to authenticate such examination by your official seal (if any) and by your
signature and to return the same together with this commission to the undersigned.
Given under my hand and the seal of the Court this day of .....................19
Judge
Judicial Magistrate
Metropolitan Magistrate.
(c) It should be noted that Commissions issued to witnesses residing in the Colony of
Singapore are to be forwarded through the High Court,Bombay, which has to forward it
direct to the High Court in the Colon of Singapore (Government of India Letter, Ministry
of Home Affairs, No. F.20(4)/J/II/55Pt. II,dated the 9th December 1955) unlike
commissions issued to witnesses residing in the countries, except the Colony of
Singapore, specified in Column I of the Schedule of SubParagraph (a) which have to be
sent through the channel of the Ministry of External Affairs, Government of India, New
Delhi, for onward transmission to the Foreign Courts concerned.
(d) In respect of the countries specified in Column 1 of the Schedule annexed hereto, the
Government of India have notified the following Courts, Judges and Magistrates in the
corresponding entries in column 2 of the said Schedule by whom commissions for the
examination of witnesses residing in India may be issued;
THE SCHEDULE
Country Courts, Judges or Magistrates.
1. United Kingdom (a) The Supreme Court of Judicature at the
Royal Courts of Justice, London.
(b) The Supreme Court of Northern
Ireland; and
© The Court of Session,Scotland.
(Government of India Notification, Ministry of Home Affairs, No. S.R.O. 2162, dated
18th November 1953.)
2. Union Of Burma (a) A Sessions Judge, an Additional
Sessions Judge and a Special Judge
appointed under the Special Investigation
Administrative Board and Bureau of
Special Investigation Act,1951(Burma Act
No. of 1951);
(b)Any Magistrate through the District
Magistrate to whom he is subordinate, and
© The Special Crime Courts.
(Government of India, Ministry of Home Affairs, Notification No. S.R.O. 1470, dated
24th July 1953 and S.O. 1469, dated 10th May 1966.)
3. Dominion of Canada Superior Courts in the Provinces of the
Dominion of Canada.
(Government of India Notification, Ministry of Home Affairs, No. S.R.O. 2164, dated
18th November 1953.)
4.East Pakistan(Now People`s Republic of (East Pakistan) now People`s Republic of
Bangladesh. Banglades. Courts of Session in the
District of :
1)Dacca.
2)Mymensingh
3)Faridpur
4)Bakarganj
5)Chittagaong
6)Tippera
7)Noakhali
8)Sylhet
9)Rajshahi
10)FinsjputBogra.
11)Rangpur.
12)PabnaKushtia.
13)Jessore.
14)Khulna.
District Magistrate:
15)Dacca.
16)Mymensingh.
17)Faridpur
18)Bakarganj
19)Chittagong
20)Tippera.
21)Noakhali.
22)Deputy Commissioner,Chittagong Hill
Tracts.
23) De Commissioner, Sylhet.
24)Rajshahi.
25)Dinajpur.
4A West Pakistan 1) Karachi
(1) Chief Court of Sind, Karachi.
(2) The District Magistrate, Karachi.
(3) The City and Additional District
Magistrate, Karachi.
(4) All the Additional City Magistrates in
the Federal Capital, Karachi, exercising
powers of a Magistrate, Fisrt Class,
2) Sind.
(1)Chief Court of Sind,Karachi and Court
of Session, Hyderabad.
(2) Court of Session, Tharparkar at Mirpur
Khas.
(3) Court of Sessions, Nawab Shah.
(4) Court of Sessions, Larkana.
(5)Court of Sessions, Sukkar.
(6) District Magistrate, Tatta.
(7) District Magistrate, Hydrabad
(8) District Magistrate, NawabShah.
(9) District Magistrate, Sukkar.
(10) District Magistrate, Larkana.
(11) District Magistrate, Dadu.
(12) District Magistrate, Upper Sind
Frontior, Jacobabad.
(13) District Magistrate, Tharparkar,
Mirpur Khas.
3. Baluchistan.
(1)Judicial Commissioner in
Baluchistan,Quetta.
(2) Sessions Judge in Baluchistan,Quetta.
(3) District Magistrate, QuettaPishin,
(2) Court of Session, Peshawar.
(3) Court of Session, Hazara (Abbottabad)
(4) Court of Session, Dera Ismail Khan.
(5) District Magistrate, Peshawar.
(6) District Magistrate, Mardan.
(7) District Magistrate, Hazara
(Abbottabad)
(8) District Magistrate, Kohat.
(9) District Magistrate, Bannu.
(10) District Magistrate, Dera Ismail Khan.
5.Punjab.
(1) High Court of Judicature at Lahore.
(2) Court of Session, Lahore.
(3) District Magistrate, Lahore.
(4) District Magistrate, Shiekhpura.
(5) Court of Session, Sialkot.
(6)District Magistrate, Sialkot..
(7) Court of Session, Gujranwala.
(8) District Magistrate, Gujra.
(9) Court of Session, Shahapur.
(10) District Magistrate, Shahapur.
(11) Court of Session, Jhelum.
(12) District Magistrate, Jhelum.
(13) Court of Session, Rawalpindi.
(14) District Magistrate, Rawalpindi.
(15) Court of Session, Attack.
(16) District Magistrate, Attack.
(17) Court of Session,Mianwali.
(18) District Magistrate, Mianwali.
(19) Court of Session, Montgomery at
(27) Court of Session, Dera Ghazi Khan.
(28) District Magistrate, Dera Ghazi Khan.
6. State of Khairpur.
(1) District Magistrate.
(2) Court of Session.
(3) High Court.
7. Baluch State Union.
(1) The Courts of Nazims at Kachi, Kalat,
Sarawan,Jhalawan and of Naib Nazim at
Makran.
(2) Court of Wazir Kharan, Wazir Mukran
and Wazir Lasbela and
(3) The Home Secretary and WazirAzam,
Baluchistan Union States who respectively
exercise the powers of Sessions Judge and
the Court of Final appeal in the Union.
8.Frontier Region State.
I. Majamand Agency :
The Court of the Political
Agent,Mahamand.
II. Malkand Agency:
(i) The Court of the Political Agent, Dir
Swat and Chitral Malakand.
(ii) The Court of the Additional Political
Agent, Chitral.
(iii) The Court of the Assistant Political
Officer, Malkand Agency, Chakdara.
III. Khyber Agency :
(i) The Court of the Political Agent,
Khyber.
(ii) The Court of the Assistant Political
Officer, Khyber.
(iii)The Court of the Assistant Political
Officer, North Waziristan.
VI. South Waziristan Agency :
(i) The Court of the Political Agent, South
Waziristan.
(ii) The Court of the Assistant Political
Officer South Waziristan.
VII. Amb Statet:
Additional District Magistrate, Darband.
9 Bahawalpur State :
(1) High Court of Judicature, at
Baghdaddul Jadid.
(2) District and Sessions Judges of
Rahimyar Khand and Bahawalpur.
(3) District Magistrates of Bahawalnagar,
Bahawalur and Rahimyar Khan.
(Government of India Notification, Ministry of Home Affairs, No. F.20(3)J'II/55
2,dated 18th October 1955.)
5.United Arab Republic The Cairo Court of First Instance.
(Government of India Notification, Ministry of Home Affairs, No. S.O. 3785, dated 3rd
December1965.)
13. Commissions for the examination of witnesses residing in the State of Jammu and
Kashmir, to be issued under the code of Criminal Procedure,1973 (2 of 1974), should be
issued to the following Courts, within the local limits of whose jurisdiction the witnesses
reside:
(1) The Court of the District Magistrate, Srinagar.
(2) The Court of the District Magistrate, Jammu.
(3) The Court of the District Magistrate, Baramulla.
(4) The Court of the District Magistrate,Anantnag.
(5) The Court of the District Magistrate, Doda.
(6) The Court of the District Magistrate, Udhampur.
(7) The Court of the District Magistrate, Kathua.
(8) The Court of the District Magistrate, Poonch.
(9) The Court of the District Magistrate, Ladakh.
(Vide G. N. Ministry of Home Affairs, No. S.R.O. 847, dated 13th May 1952.)
14. (1) In pursuance of clause (a) of subsection (2) of section 508 A of the Criminal
Procedure Code, 1898 (V of 1898), the Central Government has specified for the purpose
of subsection (1) of the said section the following Courts:
(1)The Courts of the Deputy Commissioner of the United KhasiJaintia Hills District,
Shillong.
(2)The Court of the Deputy Commissioner of the Garo Hills District, Tura.
(3)The Court of the Deputy Commissioner of the Naga Hills District, Kohima.
(4)The Court of the Deputy Commissioner of the United District of Mikir and Noth
cachar Hills, Diphu.
(5)The Court of the Deputy Commissioner of the Lusai Hills District, Aijal.
(Vide G. N. Ministry of Home Affairs, No. S.R.O. 673, dated 16th April 1952.)
(2)In pursuance of subsection (2) of section 504 of the code of Criminal Procedure, 1898
(Act No. V of 1898), The Central Government hereby specifies the following officers in
the autonomous districts in the State of Assam specified in Part I of the Table appended
to paragraph 20 of the Sixth Schedule to the Constitution, to which the said Code does
not extend, as the Officers to whom commissions for the examination of witnesses
residing within the local limits of their respective jurisdiction shall be directed , namely:
(1) Deputy Commissioner, United Khasi and Jaintia Hills, Shillong;
(2) Deputy Commissioner, Garo Hills, Tura;
(3) Deputy Commissioner, Lushai Hills, Aijal;
(4) Deputy Commissioner, Naga Hills, Kohima;
(5) Deputy Commissioner, United Districts of Mikir and North cachar Hills, Diphu.
(Vide G. N. Ministry of Home Affairs, No. S.R.O. 2001, dated 26th October, 1953.)
Language of Commissions and Processes
15. Commissions or other processes issued for execution or service at any place where
the language is different from that of the Court issuing them, should be accompanied by
translations in the language of such place or in English.
In case of commissions or processes from Courts subordinate to other High Courts, the
return of Execution or Service shall be accompanied by an English translation.
Summonses and Warrants
16. Attention of the Magistrates is drawn to section 204(2) of the Code of Criminal
Procedure,1973. Under subsection(2) , no summons or warrant under subsection (1)
should be issued until a list of prosecution witnesses has been filed. In proceedings under
subsection(3) instituted upon a complaint made in writing, a copy of the complaint
should accompany the summons or warrant issued under subsection(1). The necessary
copy or copies shall be supplied by the complainant.
17. The Court issuing a warrant under section 78(1) of the Code of Criminal
Procedure,1973, shall forward along with warrant, the substance of the information
against the person to be arrested, together with such documents, if any, as may be
sufficient to enable the Court acting under section 81, of the Code of Criminal
Procedure,1973, to decide whether bail should or should not be granted to the person.
18. Attention of the Magistrates is invited to the newly incorporated provision of Section
206 of the Code of Criminal Procedure, 1973 which provides for special summonses in
cases of petty offences and also under section 115 of Motor Vehicles Act,1939.
19. (1) Summonses issued under the code of Criminal Procedure by Courts may be
signed and sealed by the clerk of the Court, or where there is no Clerk of the Court, by
the Sheristedar, or the Clerk performing the duties of Sheristedar, subject to the orders of
the Presiding Officer of the Court.
(2) Summonses issued by the Executive Magistrates may be signed and sealed by the
Clerk subject to their orders.
(3) Summonses issued by the court of any Metropolitan Magistrate may be signed and
sealed by the Officer for the time being performing the duties of Judicial Clerk in such
Court.
(4) Attention of the Magistrate is drawn to the newly incorporated provision of the
Section 69 of Code of Criminal Procedure,1973 , which provides for service of
summonses on witnesses by Registered Post and the powers of the Magistrate to declare
the summonses duly served in a case of refusal to accept the delivery or acknowledgment
purporting to be signed by the witness.
20. In the case of men of high position , a letter signed by the Judge or Magistrate, and to
the same effect as form I or 33, Second Schedule, Code of Criminal Procedure,1973 may
be substituted for the ordinary summons.
SUMMONSES TO MEMBERS OF PARLIAMENT AND LEGISLATURE
21. No summons or other legal process issued against a member of the Parliament or of a
State Legislature shall be sent for service to the Presiding Officer or the Secretariat of the
House of the Parliament or the State Legislature. No such summons or other process shall
be served within the precincts of the Houses of the Parliament or of the State Legislature
without obtaining the permission of the Presiding Officer concerned.
SUMMONSES OF PERSONS IN MILITARY EMPLOY
22. Whenever it is necessary to summon an Officer or soldier or other person in military
employ, the summons should always be sent for service to the head of the Officer or
Department or the Officer Commanding the regiment or unit in which such Officer,
soldier or other person is serving.
Summonses to Medical Officers
23.(1) Courts summoning Medical Officers as witnesses should be careful to name such a
date of attendance as will enable the Officer summoned to attend in time. Whenever the
attendance as a witness of a Medical Officer in charge of a dispensary is likely to entail a
prolonged absence from his duties, the Court summoning the witness should make a
communication to the Civil Surgeon in order that the Officer may, if possible, make
arrangement for carrying on the duties of the witness during his absence.
(2) Ordinarily, the doctor personally familiar with the facts of the case and the condition
of the patient at the material time, should be summoned to depose to them in Court
irrespective of his status in the hospital. Subject to this consideration, a lower Medical
Officer should ordinarily be preferred to a higher one, and a stipendiary Medical Officer
should ordinarily be preferred to a higher one, and a stipendiary Medical Officer to an
honorary one, in issuing summonses, but this must be done with due regard to the
inadmissibility of hearsay evidence.
SUMMONSES TO REVENUE OFFICERS, TREASURY OFFICERS AND THE
ADDITIONAL COMMISSIONER OF RAILWAY SAFETY
24. In summoning Revenue Officers of any description or all Treasury Officers, due
consideration shall be had to the loss and inconvenience the public service may suffer
from the absence of those officers from their duties. When their evidence is required, they
should be detained for as short a period as possible and their personal attendance should
be dispensed with, whenever it can be, consistently with the requirements of justice.
(b) The summons to the Additional Commissioner of Railway Safety should always be
sent for service through the Commissioner of Railway Safety, 707, Manoranjan Park
Civil Lines, Meerut City.
© Whenever the Additional Commissioner of Railway Safety is summoned to appear in
person, the date of his appearance should be so fixed as to leave one clear month`s time
between the date of despatch of the summons and the date on which his presence is
required in the Court.
(d) The additional Commissioner of Railway Safety not be summoned to produce the
draft or the preliminary report of the accident, unless it is found that the production of
such draft or preliminary report is absolutely necessary.
(e) Whenever a summons is issued to the Additional Commissioner of Railway Safety to
produce any report(draft, preliminary or final) or any document, paper or article, the
summons should specifically mention whether he should produce it personally or may
doe so through any subordinate of his, and in all such cases the date for production
should be so fixed as t leave one clear month`s time between the date of the dispatch of
the summons and the date on which the report, document, paper or article is required to
be produced in Court.
(f) No. useful purpose is likely to be served by issuing a summons for the production of
the final report of the Additional Commissioner of Railway Safety on the accident, unless
a period of four to five months has elapsed since the date of the occurrence of the
accident, as usually no final report becomes ready before that period.
TRAVELLINNG ALLOWANCE BILL OF GOVERNMENT SERVANTS APPEARING AS
WITNESSES
26. In order to facilitate the checking of travelling allowance bill preferred by
Government Servants summoned to appear as witnesses before the Courts, Judges and
Magistrates are directed to maintain clear and accurate records regarding the issue of
summonses to such Government Servants.
HANDWRITING EXPERT
27. The authority of the Courts to issue summons for the appearance of the Government
Expert in hand writing should be exercised with due discrimination, and he should not be
called upon to appear in cases which are of a comparatively unimportant nature, or in
which his evidence is likely to be of doubtful utility. No summons to give evidence
should be issued to the above expert by any Civil Judge or Judicial Magistrate without
the concurrence of the Sessions Judge.
EXAMINER OF QUESTIONED DOCUMENTS
28. The previous sanction of Government should be obtained in all cases in which it is
proposed to utilise the services of the Government Examiner of Questioned Documents,
except when the reference is made at the request and the expenses of a partly to Civil or
Criminal Case.
29.The following extracts from revised rules framed by the Government of India
regulating applications for and the payment of the services of the Government Examiner
of Questioned Documents are reproduced for convenience of reference:
(1) Applications should be sent direct to Government Examiner of Questioned
Documents, Intelligence Bureau, Ministry of Home Affairs, “Dormers” Simla1.
(2) (i) Applications received direct from private individuals will not be entertained.
(ii)Applications received from Police Officers below the rank of Superintendent of Police
will not be entertained.
(3) Acceptable applications fall into two classes:
(A) Official Applications from certain authorities including applications from Presiding
Officers of Criminal Courts (Including the Sessions Courts).
(B) Other applications. These include applications in Civil Suits, etc.
(4) Applications falling under classes A and B will ordinarily be accepted but may be
refused at the discretion of the Government Examiner of Questioned Documents if they
cannot be undertaken without detriment to his other work.
(5) An inclusive fee will be charged in each case in which an opinion is given and will
normally cover the opinion, the cost of photographs and the giving of evidence limited in
class B cases to one day. The inclusive fee for class A cases will be Rs.220 and for class
B cases Rs.250. ( This fee, however, does not cover travelling allowance which is
governed by Rule 13 below).
(6) Subject to the exception stated at the end of this rule, the fee is payable in advance in
all cases and each application should be accompanied by a certificate in the following
form:
Certified that sum of Rupees two hundred and twenty (Rs.220) has been deposited
Rupees two hundred and fifty (Rs.250)
.in the.................................... Treasury on ....................................... on account of the
Government Examiner of Questioned Documents fee in Case/Suit No...............................
and that this amount has been shown, under Head XLVIMiscellaneousCentralOther
fees, Fines and Forfeitures Fees for the services of the Government Examiner of
Questioned Documents, in the Cash Account of Central Subjects for the Month
of .......................... and appears at item No. ................................ in the relevant Receipt
schedule.
Signature of the Treasury Officer.
Countersigned.
Signature of Officer submitting the Case.
In special circumstances. which should be stated in application, class A cases will be
accepted without this certificate, but the certificate should be forwarded as soon as
possible.
(7) In cases where the cost of photographs is exceptionally heavy,, the fee will be Rs.180
plus the actual cost of photographs in ClassA cases and in Class B cases Rs 200 plus the
actual cost of the photographs.
(8) No fees are chargeable by the Government Examiner of Questioned Documents for
the cases investigated by the Special Police Establishment.
(9) In cases in which no opinion is given but photographs are taken, only the actual costs
of the photographs will be charged, subject to a minimum of Rs.35
In cases in which the examination has been completed but no opinion could be expressed,
consolidated fee of Rs.100 will be charged.
(10)No reduction in the fee will be allowed if evidence is not required or is taken on
commission.
(11)Presiding Officers of Courts are requested to detain the Government Examiner of
Questioned Documents or his assistant for the least possible time compatible with the
requirement of the case. They are also requested to accept, so far as possible, the time and
dated for attendance offered by these officers, because the latter frequently have to attend
several Courts in the course of the tour.
(12) The Government of India in the Ministry of Home Affairs reserve the right to
impose an extra charge in any case in which they consider that the usual fee in
incommensurate with the time and labour spent on the case.
Expert Opinion of Master, Security Printing,India, Nashik Road on Genuineness of
Stamps
30. In cases of doubt in which the opinion of an Expert may be required on the question
whether any stamps are genuine or forged, a reference can be made to the
Master,Security Printing, India, Nashik Road, for his or his nominee`s report.
The scale or charges to be made by the Master,Security Printing, India, Nashik Road, for
the examination of Stamps and for giving evidence on commission shall be as follows:
(1)For each stamp examined Rs.10 but where the stamps to be examined consist of a
block or blocks from the same sheet, this fee will be charged for the examination of each
block as any one of the stamps is representative of the whole block.
(2) For stamps examined on commission, Rs.20 per document, irrespective of the number
of stamps requiring examination on each documents; provided that where more than one
document relating to the same case is to be examined on the same day, the charge will be
Rs.20 for the first and Rs 10 for each subsequent document.
These fees will be credited to VII –StampsCentral –Security Printing Press
Miscellaneous.
The scale of charges to be made by the Master, Security Printing, India, Nashik Road, for
the examination of currency and bank notes and for giving evidence on commission, is as
follows:
Rs.
(1)For each note examination .. .. .. 10 per note.
(2)For notes examined on commission in connection with forgery cases. 20 per case.
These fees will be credited to XXVIICurrencyMiscellaneous.
Opinion of Mint Master on Genuineness of Coins
31.When the evidence of an Officer connected with the Mint, the Indian Security Press,
The Currency Note Press or the Central Stamps Stores, Nashik Road, is required as to the
genuineness or spuriousness of a coin, the currency note, stamp,etc.,the Court should sent
such coin or currency note, etc. to the Mint Master or the other appropriate Head of the
department concerned by registered post under cover of their CourtSeal or by a
messenger whose evidence can after wards be taken. If it is considered necessary to take
the evidence of such officer, he should ordinarily be examined on commission under the
provisions of section 284(1) of the Code of Criminal Procedure,1973. This will prevent
the great inconvenience of such Officers being called away form their duties. In special
cases, the Court may summon such officer to give evidence before it.
Evidence of Chartered Accountant
32.(a) The following rule in respect of fees of Chartered Accountant or his qualified
assistant for giving expert evidence in Criminal Courts notified under Government
Notification, Home Department,No. 3933/7, dated 3rd July 1954, as amended by the
Government Notification in the Law and Judiciary Department, No. CPR. 1764/ 2132J,
dated 21st August 1967, is reproduced:
(1) The fees to be paid to a Chartered Accountant or his qualified assistant for each day
spent in attending a Court or in travelling for the purpose of attending a court as a witness
shall be as specified in column 2 or 3 , as the case may be of the Schedule appended
hereto in accordance with his professional standing for the years as specified in column 1
thereof,
SCHEDULE
Professional Standing Chartered Qualified
Accountants Assistants
Of five years or less .. .. .. .. .. Rs. 75 Rs. 10
Of More than five years but not exceeding ten years .. .. Rs. 100 Rs. 20
Of more than 10 years but not exceeding fifteen years. .. Rs. 125 Rs. 25
Of More than 15 Years. .. .. .. .. Rs. 150 Rs. 30
Note: The expression “expert evidence” includes evidence which an accountant is called
upon to give by virtue of his having conducted audits or investigation.
(2) Such Chartered Accountant or qualified assistant shall also be paid travelling and
daily allowance at the following rates, that is to say:
(a) Travelling allowance .. .. First Class fare.
(b) Daily allowance .. .. Chartered Accountant Rs. 5 per day.
Qualified Assistant Rs. 3 per day.
Note: The daily allowance shall be payable for each day for which the fee under sub
rule (1) is paid.
(b)A Chartered Accountant and his qualified assistant should not ordinarily be summoned
except when their evidence is absolutely necessary. Whenever they are required in Courts
as witnesses, they should not, as far as possible, be asked to be present on days on which
eheir evidence is not likely to be recorded.
33. In exercise of the powers conferred by section 544 of the Code of Criminal
Procedure,1898 (V of 1898) and of all powers enable it in this behalf, the Government of
Maharashtra by their Notification No. P.R.O. 3060/10939, dated the 8th March 1972 in
Law and Judiciary Department have made the following rules for payment, on the part of
the State Government, of the reasonable expenses of certain expert witnesses attending
any Criminal Court in the State for the purposes of any inquiry, trial or other proceeding
before such Court under the said Code, namely:
(1)Short title, extent and commencement: (a) These rules may be called the Maharashtra
Payment by Government of Expenses of Expert Witnesses (attending Criminal Courts)
Rules 1972.
(b) They extend to the whole of the State of Maharashtra.
(c) They shall come into force from the 3rd day of April 1972.
(2)Definitions: In these rules, unless the context otherwise requires:
(a) “Expert Witness” means a person who is required to attend a Criminal Court for
giving evidence as an expert within the meaning of section 45 of the Indian Evidence
Act,1872 (I of 1872) in any inquiry, trial or other proceeding before such Court under the
Code;
(b) “The Code” means the Code of Criminal Procedure,1898(V of 1898).
(3)Application of the Rules: These rules shall apply to all expert witnesses, other than
the following:
(a) Any Government Servant;
(b) Any Chartered Accountant or his qualified assistant.
(4)Authority and Conditions for payment of expenses of Expert Witnesses:
(1)Payment, on the part of the State Government , of the reasonable expenses of any
expert witness to whom these rules apply may be ordered:
(a) By the High Court or a Court of Session in any case which comes before such Court;
(b) By a Magistrate:
(i)in any case in which the offence or any of the offences with which the accused is
charged, is a nonbailable offence;
(ii)in any case in which the witness is summoned by the Court under section 540 of the
Code;
(iii)in any case in which the offence or all of the offences with which the accused is
charged is, or are bailable, only if the prosecution has been instituted or is being carried
on by the police or by, or under the orders or sanction of the Government, or of any
Judge, Magistrate or other Public Officer, or if the Magistrate considers that the
prosecution is directly in furtherance of the interest of the public, or that the person by
whom the payment is to be made is in indigent circumstance.
(2)The Court may refuse payment of such expenses:
(a) to any expert witness, whose evidence the Court does not consider to be substantially
true, or
(b) to any expert witness who without sufficient cause, remains absent on any day fixed
for his evidence and whose presence is secured by the issue of any coercive process.
(5)Scale of daily expenses to be paid to expert witnesses : The Court before which an
expert witness is required to give evidence shall, having regard to his qualifications and
professional standing or experience, determine to which of the three class specified in the
Table hereto appended he should be deemed to belong, and grant him such expenses as it
thinks fit subject to the maximum and minimum rates prescribed for such class in the
Table.
TABLE
Class of Minimum rate of expenses Maximum rate of expenses
Witness
(Oral evidence) Written Opinion (Oral evidence) Written
when required Opinion when
in addition to required in
oral evidence) addition to oral
evidence)
Rs. Rs. Rs. Rs.
Class I 75 per day 75 per opinion 150 per day 150 per opinion
Class II 50 per day 50 per opinion 100 per day 100 per opinion
Class III 30 per day 30 per opinion 75 per day 75 per opinion
Note: An expert witness who is paid expenses under this rule shall not be entitled to any
daily allowance, diet allowance or other incidental charges.
(b) When the journey is wholly or partly by rail or steamer :
(i) if the witness belongs to Class I or First Class Fare.
Class II as specified in rule 5.
(ii) if the witness belongs to class III Second Class Fare.
as specified in rule 5.
(2)Travelling expenses may be paid to any expert witness in advance, before he starts on
his journey to the Court considers that it is necessary so to do in his case.
(7)Treatment of peculiar cases: Case not covered by the provisions of rules 4,5 and 6
may be dealt with on their merits and at the discretion of the Court.
Note: The above rules for payment on th part of the State government of the reasonable
expenses of certain expert witnesses attending any criminal court in the state for the
purposes of any inquiry, trial or other proceeding before such Court, shall be deemed to
have been made under the corresponding provision of the Code of Criminal
Procedure,1973.
( Vide High Court notification No. P.1302/60, dated the 20th July 1972, published in
Maharashtra Government Gazette, Part IvC, at page 1237 to 1239)
REPORT OF FINGER PRINT BUREAU
34. The Finger Print Bureau will not supply written reports on impression submitted to it
except at the request of a Civil or Criminal Court. Such reports will be supplied to
Criminal Courts free. Civil Courts in forwarding requests for such opinion should state
whether the report is required solely for the information of the Court and in the interest of
justice or for the use of the party to suit or any proceeding.
Fees or charges for services rendered by the Ginger Print Bureau:
Nature of work Revised Rate
Furnishing of written opinion in case received Rs.50 ( Plus Photographic charge)
from private parties for set of prints consisting
of one disputed and one specimen.
Fees or Charges for services rendered by the Handwriting and Photographic Bureau.
Nature of work Revised Rate
(1) Examination of documents and opinion. Rs.150 for questioned document numbering
up to 5 only and Rs.10 for every additional questioned document.
(2) Expert evidence and attendance .. Rs. 100.
(3) Photographic charges .. In accordance with the statement herein below.
Statement of Photographic Charges
Charges to be levied for photographs of documents in “PAID CASES” ( these include the
cost on account of preparing the negatives in the respective cases.
Enlargement 1st copy 2nd copy
Photoprintsize
Rs. P. Rs. P.
13 X 18 cm. 2.00 1.25
18 X 24 cm. 3.00 1.75
24 X 30 cm. 4.00 2.50
30 X 40 cm. 5.50 3.50
(b) Photographs done after special processes.
18 X 24 cm. 15.00 4.00
24 X 30 cm. 25.00 5.00
© Positives on transparancies.
1. On same size .. .. .. .. .. Rs.2 each
2. On Enlargement.. .. .. .. .. copy.
Rs.5 each
copy.
Levy of a fee of Rs 75 per day from private persons for the evidence of an Expert from
Finger Print Bureau in noncognizable Criminal cases is sanctioned. No Finger Print
Bureau in such cases in which the expenses of complainants and witnesses have been
ordered to be paid by Government under Paragraph 6. Travelling fees to the Finger Print
Expert for attending Court shall be granted according to the rates specified below.
(a) if he spends four hours or more in travelling to or from Rs.75 per day.
the Court /Head quarters.
(b) if he spends less than four hours and more than two Rs.40 per day.
hours in journey to or from the Court/ Head quarters.
(Vide High Court Notification No. 1306/72, dated the 2nd February,1974 published in
Maharashtra Government Gazette No. 1974, Part IVC, at pages 162163).
36. With a view to achieving uniformity of practice in the matter of payment of fees to
goldsmith called in Court for testing gold or silver ornaments produced as muddemal
property in Criminal Cases, it is directed that the expenditure for weighing gold and
silver articles should be met from the Contingent grant as per Entry No.57 in Appendix
Iv of the Maharashtra Contingent Expenditure Rules, 1965, as testing of gold and silver
ornaments involves skilled labour and some amount is required to be expended for the
payment of such charges to the goldsmith.
Instructions for forwarding food samples to the Director, Central Food Laboratory,
Calcutta for analysis and its opinion thereon
37. The following is the detailed Rule 4 of the Prevention of Food Adulteration
Rules,1955 issued by the Government of India, in exercise of the powers conferred by
subsection (2) of Section 4 and subsection (1) of section 23 of the Prevention of Food
Adulteration Act, 1954 (37 of 1954) published in the Gazette of India, Extraordinary
1955, Part II, Section 3, at page 2089 and the instructions required to be followed by all
the Prosecuting Courts or the Courts of First Class Magistrates, in forwarding food
samples to the Director, Central Food Laboratory, Calcutta, for necessary analysis thereof
and his opinion thereon:
(3) A copy of the memorandum and a specimen impression of the seal used to seal the
container and the cover shall be sent separately by registered post to the Director.
(4) On receipt of the packet, it shall be opened either by the Director or by an officer
authorised in writing in that behalf by the Director, who shall record the condition of the
seal on the container.
(5) After test or analysis, the certificate there of shall be supplied forthwith to the sender
in Form II.
(6) The fees payable in respect of such a certificate shall be Rs.40 per sample of food
analysed.
(7)Certificates issued under these rules by the Laboratory shall be signed by the Director.
(iv) Fees should be deposited in the treasury in the appropriate head in advance and the
Treasury receipt should be enclosed with Form I.
SUMMONSES FOR PRODUCTION OF DOCUMENTS IN CUSTODY OF HOUSES OF
PARLIAMENT OR STATE LEGISLATURE
38. Summons for the production of documents in the custody of the Houses or Parliament
or of the House of State Legislatures should not be issued in the ordinary form. A letter
requesting the production of the same should be substituted therefor in the following
Form, addressed to the Speaker of the House of People or the Legislature Assembly of
the State, or the Chairman of the Council of States or the Legislative Council of the State,
as the case may be:
FORM
To,
The Speaker of the House of the People/ Legislative Assembly
The Chairman of the Council of State/Legislative Council.
Parliament House, New Delhi
Council Hall, Bombay.
Dated, the 19
Subject.(Description of the Case)
Sir,
In the above proceeding, the plaintiff/defendant/complainant/accused proposes to rely
upon the documents, specified in the Annexure, which are in the custody of the
House of the People/The Council of States, I have to request you to move the House to
grant
Legislative Assembly/Legislative Council, leave for the production of documents in my
Where mere production court and, if such leave is granted, to arrange to send the
documents/ of documents is required certified copies of the documents so as to reach me
on or before .................................................by registered post (A.D.) or through an officer
in the Secretariat of the House.
In the above proceeding, the plaintiff / defendant / complainant / accused proposes to
examine............................................................................... an officer in the Secretariat of
the
House of the People/The Council of States, (or any duly informed officer in the
Secretariat of
Legislative Assembly/Legislative Council, the House) as a witness in regard to matters
specified in the Annexure. I have to request you to move the house to grant leave for the
Where oral evidence of an officer examination of the said officer in my Court, and, if
such
in the Secretariat of the House is leave is granted, to direct the officer to appear in my
required . court at 11 a.m. on .............................................................................
Yours Faithfully,
RETURN OF WARRANTS OF ARREST, NOTICE, ETC.
39. Warrants of arrest should be made returnable on execution, or alternatively, after a
give time, e.g. there months. In the latter case, they should be accompanied on return by a
Police report as to whether the accused has been heard of, and is likely to come within
reach. After reissue for a certain number of times, the Warrant thus returned should be
put on the file of unexecuted warrants, in capital cases after sever years; in cases in which
the offence is punishable with imprisonment for not less than seven years, after three
years; and in other cases, after a year. In the event of information reaching the Magistrate
that the accused has come or is likely to come to a place where he could be arrested, the
warrant should be immediately reissued. A separate file shall be maintained for such
unexecuted warrants.
40. Notices calling upon accused persons to show cause why they should not be retried or
committed to the Court of Session, or why a sentence should not be enhanced, or why
imprisonment should not be awarded in addition to or in lieu of a sentence of fine, should
be returned served as soon as possible. If service cannot be effected for a period of one
month after receipt of the notice, it should be returned accompanied by a Police report
stating in detail the efforts made for effecting service and why such efforts failed and
whether the accused is or is not likely to come within reach.
PROCEDURE FOR SECURING ATTANDANCE OF PERSONS CONFINED IN PRISON
41. Attention of the Magistrates is invited to Chapter XXII containing sections 266 to 271
of the Code of Criminal Procedure,1973, prescribing the procedure for securing the
attendance of persons confined or detailed in prisons required to be brought before them
for answering to a charge of an offence or for the purpose of any proceeding against him
or for examination of any person as witness or for recording his evidence.
Where attendance of the prisoner is required to give evidence, the Court should make an
order in the Form set out below directed to the Officer in charge of the prison.
Court of
To The Officer incharge of
the ....................................................................................................
(State name of the prison)
You are hereby required to produce ............................................................. now confined
in ................................................................... under safe and sure conduct before the Court
of ................................................................................................... at ...............................
on the ................................................................ date of ................................... next
by ................. of the clock in the forenoon of the same day, there to give evidence in a
matter now pending before the said Court, and after the
said ......................................................... has then and there given his evidence before the
said Court or the said Court has dispensed with his further attendance, cause him to be
conveyed under safe and sure conduct back to the prison.
The ............................................................ day of .........................................................
A. B.
Where attendance of the prisoner is required in respect of the charge of an offence against
him pending before the Court, the Court should make an order in the Form set out below
directed to the officer incharge of the prison.
Court of
To The Officer incharge of the ..........................................................................................
(State name of the prison)
You are hereby required to produce ............................................................. now confined
in ................................................................... under safe and sure conduct before the Court
of ................................................................................................... at ...............................
on the .............................................................. date of ................................... next
by ................. of the clock in the forenoon of the same day, there to answer a charge now
pending before the said Court, and after such charge has been disposed of or the said
Court has dispensed with his further attendance, cause him to be conveyed under safe and
sure conduct back to the said prison.
The ............................................................ day of .........................................................
A. B.
42. The production orders issued by the Courts to the Prison or Jail Authorities for
production of the accused or undertrial prisoners before the Courts by the Jail
Authorities, should be sent to the Prison or Jail Authorities by registered post in case such
prison or jail is situated outside the station where the Court is situated and by hand
delivery, in case the Court and the Jail/ prison are situated at one and the same station.
43. The Judges and Magistrates are directed not to insist on production of the prisoners,
“sentenced to death”' in Criminal Cases pending before them against the very prisoner,
unless the sanction of the State Government is obtained, as Section 4 of the Prisoners
(Attendance in Courts) Act,1955 empowers the State Government to direct that any
person or class of persons shall not be removed from the prison in which he or they may
be confined and the Rule 8 of the “Production of Prisoners in Courts, Execution of
Sentences and Orders of the Courts and Releases of Prisoners Rules,1972 (Non
statutory)' provides that the prisoner under sentence of death is not to be removed form
the prison in which he is confined without the special sanction of the Government. The
Judge and Magistrates may, however, if deemed fit, postpone the commencement of
inquiry or trial under section 309 of the Code of Criminal Procedure,1973 if the sanction
is refused by the Government till the continuance of the bar on the production of
Criminal exists.
PRODUCSTION IN EVIDENCE OF DOCUMENTS
44. A Magistrate requiring the production in evidence of documents, recorded in a Court
of Justice, or in the custody of any public officer shall, in his communication to such
Court or Officer, state clearly whether he requires the entire record or any particular
paper or papers; also at what time and place the papers, if not previously sent by post,
must be produced; and whether any subordinate officer will be required to attend for the
purpose of proving them. The communication shall be signed and sealed in the same way
as a summons.
As a rule , it is not desirable that a Magistrate should sent for original papers, in cases in
which copies will serve the purpose, and in which the person requiring the production of
the papers is in a position to obtain certified copies.
45. Original documents in the custody of the Houses of Parliament or of the State
Legislatures should not be called for if certified copies thereof would serve the purpose.
It is only in cases where parties insist upon strict proof that the Courts should call for the
Originals. In this connection, attention of the Judges and Magistrates is also called to
section 78(2) of the Indian Evidence Act, 1872 (I of 1872) which specifies the way in
which the proceedings of the Legislature can be proved.
Chapter III
Enquiry And Trial by Magistrate
Complaints
1. As soon as the Complaints/Chargesheet (other than that for petty offence), is
filed in the Court, it shall be examined with reference to the following points :
(1) Whether the Chargesheet/Complaint is filed in the Court having jurisdiction
(2) Whether the Chargesheet/Complaint is filed within the prescribed period of
limitation.
(3) (a)Whether a sanction of any authority is necessary under the law for
launching the prosecution.
(b) If yes, is it obtained at the prescribed point of time and from the prescribed
authority.
(c) Whether the original Order of sanction or a copy of the same is produced as
required by law.
(4) (a) Whether the names and addresses of Complainant / accused and witnesses
are properly mentioned;
(b) Whether the accused is juvenile and as such, is it necessary to deal with
accused under Probation of Offenders Act, 1958.
(5) Whether the identification marks of the accused are furnished in Police Cases.
(6) Whether the accused was arrested and released on bail before launching the
prosecution, whether the dates of his arrest and release are mentioned in the
Chargesheet/ Complaint and the bail bond (if not already in custody of the
Court), is attached to the case papers.
(7) Whether the accused is released by the Court on bail before launching the
prosecution.
(a) whether the date of such release is mentioned in the Chargesheet ; and
(b) whether the bail papers are available in Court records (attach the bail
papers to the case.).
(8) Whether the First Information Report is received by the Court (attach the First
Information Report to the Chargesheet.)
(9) Whether sets of legible copies of relevant papers are supplied for the use of the Court
and for delivery to the accused.
(10) (a) Whether all items of muddemal property mentioned in the Charge sheet /
Complaint are produced.
(b) whether every item of muddemal property is properly and separately
described and numbered in the Chargesheet / Complaint;
(c) Whether value of each item is properly mentioend;
(d)whether the Law expects the Court to make any early action in respect of any item of
muddemal property (e. g. Sending to chemical analyser, food analyst, taking steps for
preservation / disposal / security ) etc.
(11)Whether confession / dying declaration / statements of witnesses under section 164 of
Code of Criminal Procedure, 1973, are recorded in the course of investigations.
(a) whether such original docuemtns are produced.
(b) if not produced, what is the reason assigned for such omission;
(c) what steps are required to be taken by the Copurt for obtaining these documents in
custody.
(12) Where the accused is
(a) a juvenile offender;
(b) a member ofmilitary personnel;
(c) a person of unsound mind;
(d) a deaf and dumb person;
(e) a person who is required to be dealt with under a specific provision of law,
(i) whether the relevant fact is mentioned in the chargesheet / Compaint
(ii) what steps are required to be taken by the Court in his context.
1. A. (i) Attention of the Magistrate is drawn to Chapter XXXVI of the Code of
Criminal Procedure, 1973, which provides for taking cognizance of contain
offences. The Magistrate before taking cognizance should bear them in mind.
ii. (a) When the Magistrate takes cognizance of a complaints the examinations as laid
down in section 200 of the Code of Criminal Procedure 1973 of the complaints
and his witnesses, if any should, as far as possible, be taken immediately, and in
any case within a maximum period of 7 days.
(b) Except in cases contemplated in first provisio (a) and (b) of section 200 of the Code of
Criminal procedure 1973, care should be taken by the Magistrates in conducting the
examination of a complainant and the witnesses present, if any, under section 200, to
makes the inquiry sufficiently full to enable him to judges whether there are any grounds
for proceedings. Before enquiring or directing an enquiry or investigation into the case
under section 202 of the Code of Criminal Procedure, 1973, or the purpose of deciding
whether or not there is sufficient ground for proceedings the Magistrate may, if he thinks
fit, postpone the issue of process against the accused and for holding or directing such
inquiry or investigation. Simillarly, he must record his reasons for dismissing a complaint
under section 203. where it appears to the Magistrate that the offence complained of is
traible exclusively by the Court of Sesion, the Magistrate shall not make any direction for
investigations to be made by the Plice Officer, as contemplated in provisio (a) to sub
section (i) of section 202 of the Code of Criminal Procedure 1973. He shall, however, call
upon the complainant to produce all his witnesses an examine them on oath.
iii.In cases where a private complaint is filed in a Court of Law, the complainant
must be given a Criminal case number and must be registered in the register of
Criminal Cases immediately after the complaint is filed in the Court.
iv. In petty cases of assault, hurt, insult, simple trespass, etc, and in noncognizable
cases, which are of private rather than of public interest, the Magistrate should not
ordinarily direct the police to make an enquiry or investigation.
Roznama
i. A proceeding sheet (Roznama) should in the form given below, be kept in
English in all inquiries, trials and other cases. It is meant only as a guide
and is not intended to be exhaustive. In uncontested noncognizable cases,
a proceeding sheet (Roznama) may not be maintained.
ii. The object of Roznama is to show in concise form the proceedings taken in each
case with the date of each proceeding. It is to be a faithfull history of the case and
correct list and description of the exhibits; and at the same time, it should be so
drawn up as to show all the details of the case at one view and yet be as concise as
possible. It is not to include a record of ministerial acts, such as the receipts of
bhatta or process fees, the preparation of summonses and the like.
iii.It must be kept from day to day as an original document. It may be written by a
clerk but must be initialled or signed by the Magistrate at the end of the
proceeding recorded every day.
iv. All the papers in the case should, as far as posible, be arranged in the manner in
which papers in civil suits are arranged.
v. Following is the list of documents which may not be exhibited unless they happen
to fall also within the description givin in the subparagraph next hereinafter
following :
i. Papers subsidiary to orders sanctioning promotions.
ii. Reports as to marks of violence on undertrial
prisioners in a case.
iii.Summonses.
iv. Warrants, and
v. Commissions for examination of witnesses.
vi. Following is the list of documents (apart from articles) which should be
exhibited :
1. Order sanctioning prosecution,
2. Political Agent's certificates,
3. Complaints,
4. Chargesheets
5. Vakalatnamas,
6. Applications for bail and orders,
7. Remand applications and orders,
8. Bail papers and bonds,
9. Charges (framed by the Court),
10.Pleas of accused,
11.Depositions,
12.Confessions,
13.Documentary evidence,
14.Statements of the accused.
15.All applications submitted to the Court including
applications for with drawing and compounding
cases, and
16.Judgments and final orders regarding disposal of
property.
viii.The category of he (A, 'B', 'C', and 'D') in which each paper or document
mentioned in the Toznama is required to be kept before forwarding the record to
the recordroom as per instructions contained in paragraph 17 of Chapter XX of
this Manual should be noted in red ink or pencil in the margin of the Roznama
against each paper or document. Similarly, a note as regards the return or loss or
destruction of a document should be made in red ink in the Roznama.
ROZNAMA
IN THE COURT OF SHIR.........................................................................................
JUDICIAL MAGISTRATE, FIRST CLASS,...............................................................
CIVIL JUDGE AND JUDICIAL MAGISTRATE, FIRST CLASS,............................
SPECIAL JUDICIAL MAGISTRATE, FIRST CLASS,.............................................
Case No. OF 19
State
Complainant
Versus
Name ...........................................................Age....................................Occupation......
Residence.........................................................................................................................
The accused was arrested on.............................................................................................
He was remanded to Police/Magistrate custody on...........................................................
Was in such custody till.......................................................................................................
He was released on bail on ....................................................................................................
He is at present on bail/in custody.
1. State.........................................................................Represented by Pleaader
Complainant
Shri ....................................................................................................................................
2. Accused.......................................................................Represented by Pleaader
Shri...................................................................................................................................
3. Section or Sections of Law under which the accused is/are
tried.......................................................................................................................................
4. Details of muddemal property before the Court (if many items, enter as per list
Exhibit).
Date on which the case comes No.of Exhibit Proceeding Date to which the
before the Court for case is adjourned
proceeding
1. 2. 3. 4.
(Note : In cases committed to the Court of Sesion for trial, if the accused is charged with
a bailable offence, and is released on bail, the proceedings will show that he appearson
bail instead of in custody, and instead of referring to the warrant of commitment, the
proceedings will show that he was ordered to be released on giving bail for his
appearance before the Court of Session, and will state the number and amount of the
securities required.)
Supply of Copies to the accused
3. (i) The Magistrate should bear in mind that under Sections 207 and 208 of the
Code of Criminal Procedure, 1973, the statutory duty is cast upon them to furnish
to the accused, free of cost, copies of the documents specified in the said sections.
Before the proceding in the case, they should satisfy themselves the copies of all
the documents specified in the said sections are furnished to the accused.
ii. In cases wherein the proceedings have been instituted on Police kreports, such
copies of the documents specified in sections 173(5) and 207 the code of the
Criminal Procedure, 1973, should be furnished to the accused by the Police
Officer, if it is convenient to him. In this connection, the Inspector General Of
Police who was asked by the High Court to continue the existing arrangement
regarding prepration of copies and furnishing them to the accuded has agreed to
continue the existing practice as an interim arrangement till the appointment of
necessary staff by the High Court. (Vide Government letter, Home Department,
No.PRO0774/27694..VIIP, dated 5th February 1977).
iii.In cases wherein the proceedings have been instituted otherwise than on Police
reports, wherein the offence is triable exclusively by the Court of Session, the
Magistrate shall furnish the accused, free of cost, copies of the documents
specified in section 208 of the Code of Criminal Procedure,1973 if he is satisfied
that any such document is not voluminious. In case such document is
voluminious, he shall, instead of furnishing the accused with a copy thereof, direct
the accused that he will only be allowed to isnpect them personally or through
pleader in the Court.
Valuable Muddemal
Any specially valuable property and boxes containing cash and valuables, which it is
considered would not sufficiently be protected, if left in the Court safe or strong room,
when the Court is closed, should be deposited by the Magistrate concerned in the treasury
or SubTreasury for safe custody during the night. The Treasury Officer or SubTreasury
Officer concerned should be requested to receive such property and cash boxes upto the
closing hour every working day.
Any property sent by the criminal Courts to a Treasury or SubTreasury for safe custody
after the closing hour, should be delivered to the Senior Officer of the Police Guard at the
Treasury or SubTreasuty who should receive it, if it is proeperly secured in a sealed
receptacke and should be responsible for its safe custody.
6. Two boxes should be maintained in every Court for keeping the valuable
muddemal property, one for the muddemal of disposal of cases or of cases taken
on the dormant file, and the other for the muddemal of current cases, so that it
may be convenient to handle the valuable muddemal in current cases, which has
often to be brought to the Court and taken back to the treasury.
7. In cases triable by the Court of Session, when any proeerty is sent to the Nazir of
the Sessions Court,. It should be sealed in a bundle or bundles and labelled with
the number of the case and a list should accompany showing each item and its
identifying mark, a corresponding mark being attached to each item.
8. (i) The procedure to be followed in sending articles to the Chemical Analyser will
be found in paragraphs 147 to 150,152 and 167 of the Police Manual, Volume III,
1959 edition. Delay should be avoided by an early decision as to whether there
should be a reference to the Chemical Analyser and by an immediate despatch of
the articles. The Magistrate should personally see that the procedure mentioned in
the above rules is strictly followed when despatching the articles.
ii. The following extract from paragraph 167 is reproduced for information :
“167, Identity of articles to be preserved – It is essential that the identify of each article
attached by the Police in the course of investigation of medicolegal as well as all other
cases should be preserved unmistakeably from the commencement of attachment and
writing the panchanama upto its production, in the trying Court and identification by
witnesses and through all its intermediate stages, if any, such as while in the custody of
the Civil Surgeon and the Chemical Analyser. With this end in view, the following
instruction should be followed by the investigating officers :
1. In describing in the panchanamas the articles attached, they should be serially
numbered. Separate serial numbers should be given to the articles described in
each panchanama in case where simultaneous searches are carried out at different
places in connection with one and the same registered offence, or where more
than one panchama in connection with the same offence have to be drawn up
because of property being recovered at different times.
2. Large and distinctive labels, showing the names of, and the numbers given to the
articles attached in the Panchanama and the names of the persons from whom and
dates on which they are attached, should be securely fastened to the articles, as
soon as they are attached.
3. Receptacles containing small articles of value should be sealed in addition to
being labelled.
4. In cases where it is not possible to fasten tieonlabels, the articles should be
packed in paper or cloth as may be convenient, unless they are very bulky labels
bearing the number and name of articles being put on the covering.
5. It is not necessary to label livestock. In such cases, it will be enough, if a full
description of the animal or animals attached has been given in the panchanama,
for action being taken under section 516A, 517 or 523 of the Criminal Procedure
Code (The corresponding sections of the 1973 code are 451, 452 and 457). It may
be necessary to attach, in the course of investigation, such articles as foler, grain,
etc, which cannot be labelled. In such cases, labels need not be attched.
6. Whenevern any such articles is attached which may have to be sent to the
Chemical Analyser to Government, the investigating Officer must see that it is
enclosed in a proper receptacle or covernin, so far as possible, on the spot and in
any case in his presence and in that of the panch and that the cover is sealed by
him in such a way as to preclude tampering.
7. The lables on articles sent to the medical Officers should be attached in such a
manner as to permit of their being detached without damagebeing done to them
and used again by medical officers in repacking and transmitting the articles to the
Chemical Analyser.
8. The investigating Officer should be careful to see that such articles are sent in
proper custody to the Medical Officer. The numbers given to such articles in the
panchanama should be quoted in the forwarding report. The number of seals put
on the receptacle or covering should also be stated in the body of the report. A
receipt acknowledging these articles with seals intact should be obtained from the
Medical Officer.
9. (a) A Statement containing the following particulars in a tabulated form, should
invariably be furnished tostrying Courts by investigating Police and prosecuting
Officers and public prosecutors with regard to the article to be produced in
Courts, in all cases in which articles have been sent to the Chemical Analyser for
examination:
i. Numbers of the articles sent for examination to the
Chemical Analyser.
ii. Corresponding numbers of the articles in the list of
property submitted to the court.
iii.Corresponding numbers of the articles in the
certificate of the Chemical Analyser.
iv. Corresponding numbers of the articles in the
panchanamas bearing on the point and dates of the
panchanamas.
v. Names and numbers of the accused persons
connected with the respecive articles.
vi. Names of deceased persons (if any) connected with
the respective articles.
The Statement should, as far as possible, be submitted by the Station House Officer prior
to the provisional date fixed by the Magistrate or the Judge trying the case.
(b) In other cases in which there are many accused persons and a mass o exhibits, the list
of property submitted to Courts should be arranged according to the serial numbers of the
accused persons connected with the particular articles.”
Case Traible by Courts of Session
i. In all cases instituted on Police Reports or otherwise , whenevern the
accused appears or is brought before the Magistrate, and it appears to the
Magistrate that the offence is triable exclusively by the Court of Sessions,
he shall commit the case to the Court of Sessions, send to that Court the
record of the case and the documents and articles, if any, which are to be
produced in evidence and notify to the Public Prosecutor of the
commitment of the case to the Court of Sessions under section 209 of the
Code of Criminal Procedure,1973
ii. The Magistrate should report to the Sessions Judge about such cases pending
before, him stating therein reason or the reasons as to why it is pending and
seeking extension of time required by him for that purpose. In such case, the
Court of Sessions should then satisfy itself as to whether the reasons stated are
satisfactory and whether the Magistrate should be allowed extension of time. He
should then issue such instructions to the Magistrate as he deems proper.
12.When two or more persons are accused of the same offence or of offences arising
out of the same transaction, the Magistrate should not convict some and commit
others to the Court of Session. If any one of the accused is charges with an offence
beyond the jurisdiction of the Magistrate, or with, one which in the opinion of the
Magistrate, ought to be tried by the Court of Sessions, all the accused persons
implicated, against whom there is prima evidence, should be committed for trial.
Custody Cases
13.Every Magistrate, on receiving or resuming charge of his office, should enquire
which accused persons are in detention under the orders of his Court, with a view
to their being brought before him within the period specified by law (see section
309 of the Code of Criminal Procedure, 1973). Every Magistrate shall maintain a
Register of undertrial prisioners in the following form and check it once in every
fortnight with a view to giving priority to the disposal of such cases.
Register of undertrial Prisoners in Jails
Police Station and Date and hour of Date and hour Name of the Period of police
Crime Register No. apprehension by when the accus accused Custody remand
police ed is produced from..........to
before the Magistrate
1 2 3 4 5
period of Chargesheet Whenever the The date on Date of Remark
Magisterial received on and accused is on which the Decision
custody Criminal Case bail or is in the accused
remand No. Jail released on
from..........to bail
6 7 8 9 10 11
Hearing and Adjournment
1. Magistrates should remember that priority should, as a rule, be given to
criminal work over other work, and that every effort should be made to
reduce, as far as possible, the hardship to parties and witnesses which the
proceedings entail.
2. The Magistrates should settle their Boards personally and should not leave it to be
done by their Bench Clerks. The Boards should be settled so as to have, as far as
possible, only such number of matters as will occupy the whole day, after making
allowance for the fact that some matters are likely to be adjourned owing to the
absence of parties or their witnesses or for some other reason. The Magistrates
should, however see that too many cases are not put on the Board, as this would
cause unnecessary inconvenience and harassment to the parties.
3. The Magistrate should always sit punctually at the appointed hour so as not to
keep pepople waiting. If the Magistrate finds that, owing to his absence from the
Court or his being busy with other cases, it is not possible for him to hear any case
on the day fixed for its hearing, he should, so far as possible, intomate to the
parties in advance, so that parties and witnesses do not have to attend the Court
unnecessarily.
15.Though no hard and fast rule may be laid down regarding the precedence in
hearing cases, it would be useful to bar the following principles in mind:
i. Cases in which Juvenile Offenders are involved should normally be
disposed of with the utmost expedition and as soon as possible after the
Offender is brought before the Magistriate.
ii. Custody cases should take precedence over noncustody cases.
iii.Cases in which Government servants are involved should be dealt with as
expeditiously as possible.
iv. Cases under the Indian Railways Act, and other petty noncognizable
cases, should be disposed of as soon as possible after the accused is
produced before the Court.
v. Parthead, cases and cases which are standing over from previous dates of
hearing should take precedence over the cases to be heard for the first
time.
vi. Cases in which parties and witnesses come from a distance should, as far
as possible, be given due preference.
vii.The following cases should be disposed of as expeditiously as possible:
1. Cases under the Protection of Civil Rights Act, 1955
2. Cases under the Essential Commodities Act.
3. Cases under the Bombay Shops and Establishments
Act,1948
4. Cases of Riot, and Communal Disturbance.
5. Cases relating to Economic Offences.
6. Cases of reckless and dangerous driving under the
influence of liquor etc.
7. Applications for grant of maintance filed under
section 125 of the code of Criminal Proceddure
1973.
16.In order the minimize the hardship caused by unnecessary detention of parties and
witnesses in cases which have to be adjourned for want of time, every Magistrate
should, at the commencement of work on any day, consider applications for
adjournment of cases in the day's list. Thereafter, he should asses the number of
cases he would be able to take up during the course of the day. For this purpos, he
should consider the position in regard to the partheard and new cases on the
Board due regard being given to the principles as to priorities indicated above. He
should then discharge the cases which are not likely to be heard on that day so that
the parties and the witnesses may not have to remain present in the court
unnecessarily. In regard to cases retained on the Board, he should inform the
paties and their Advocates at what time approximately their cases are likely to be
taken up. Before rising for the afternoon recess, the Magistrate may again assess
the positiion, and if he be of the opinion that any cases, which were not discharged
earlier, are not likely to be taken up, he may discharge such cases after giving
suitable dates fo the next hearing.
17.Section 309 (I) of the Code of Criminal Proceddure, 1973 Provides “in every
inquiry or trial, the proceedings shall be held as expeditiously as possible and in
particular when the examination of witnesses has once begun, the same shall be
continued fro day to day until all the witnesses in attendance have been examined,
unless the Court finds the adjournemnt of the same beyond the following day to
be necessary for reasons to be recorded”. The hearing of a case should, therefore,
go on from day to day, and this practice should be strictly followed. Exception
may be made only where as insistance on it would defeat the ends of justice or is
required by the law.
18.(1) Under the second privisio to subsection (2) of section 309 of the Code of
Criminal Proceddure 1973, no adjournment shall be granted, when witnesses are
in attancence, without examining them except for special reasons to be recorded in
writing. So far as possible, all witnesses who are present on any day, should be
examined.
2. The reasons for not hearing a partheard case, and the adjournment of any
case where the witnesses are in attendance, should be recorded by the
Magistrate.
3. No case should be adjourned on the ground that all the witnesses, who
have been summoned, are not present.
19.Adjournments should not ordinarly exceed seven days when the accused is in
custody, and 15 days when he is on bail. Adjournment for longer priods should be
granted only for special reasons which should be recorded.
20.The Convenience of lawyers shall not ordinarly be regarded as a good ground for
adjourning the case.
21.Cases should not ordinarily be adjourned for the personal conveniance of the
Police Prosecutor. Frequent absence of the Police Prosecutor should be reported
by the Magistrate to the Sessions Judge. Ordinarrily, when a Police Prosecuter
consents to be present on a particular date, the Magistrate should not adjourn the
case, unless the absence of the Police Prosecuter is due to reason beyond his
control or unless the Magistrate otherwise deems it proper to do so in the interest
of justice.
22.The attention of the Magistrate is inviated to section 256(1) and to Section 317(1)
of the Code of Criminal Proceddure 1973. In view of these provisions, the mere
absence of either the complainant or the accused is not a sufficient cause for
adjournment. The Magistrate should, whenever possible, proceed with the hearing
of the case in their absence.
23.It is noticed that the trial of cases is often delayed by the absence of witnsses and
that several Magistrate fail to take action when witneses, though duly served, do
not attend without sufficient cause. Magistrtes may in proper cases proceed
against witneses who fail to appear on a summons or a bond, unless satisfactory
reasons are given for their absence. In this connection, the attention of the Judicial
Magistrates is invited to section 350(i) of the Code of Criminal Proceddure,1973.
Warrant Cases
24 (1) The Magistrates should scrupulously follow the statutory directions in Chapter
XIX (Trial of Warrant Cases by Magistrates) of the Code of Criminal Proceddure 1973,
dealing with trials in Warrant Cases. In this connetion, the attention of the Magistrtates is
also drawn to the proceddure laid down in Sections 238 to 243 of the Code of Criminal
Procedure,1973, for the trial of warrant cases instituted on Police Reports and the
procedure laid down in sections 244 to 247 applies only on Warrant Cases instituted
otherwise than on Police report.
2. Sections 246(4) to 246(6) and 247 of the Code of Criminal
Procedure,1973, Provide that, In warrant cases instituted otherwise than on
police report, after the plea of not guily to the charge:
i. the accused shall be asked which (if any) of the
prosecution witneses already examined the wishes to
have recalled for crossexamination, and that
ii. this question shall be put to him at the comencement
of the next hearing of the cases or, if the Magistrate
for reasons to be recorded in writing so thinks fit,
forthwith.
3. To avoid needless harassment of witnesses by being recalled for cross
examination after the charge has been framed, Magistrates will usually find it
convenient not to wait for the completion of the evidence for the prosecution, but
to frame the charge as permitted by section 246(i) of the Code of Criminal
Proceddure 1973 at an earlier stage, as soon as, from the examination of the
complainant or otherwise, it is apparent that there is a prima facie case.
4. Attention of the Magistrates is drawn to the provision of section 259 of the Code
of Criminal Proceddure 1973 which empowers the Magistrates to Proceed to re
hear the case in the manner provided for the trial of warrant cases and for that
purpose may recall any witnesses which may have been examined in the course of
the trial of a summons case relating to an offence punishable with imprisonment
for a term exceeding six months, particularly when it appears to him that in the
interest of justice the said offence should be tried as a warrant case.
Summary Trials
25.(1) Before connecting the trials of offences which can be tried summarily,
Magistrates should consider the appropriateness and desirability of following the
summary procedure :
2. Summary procedure in the following cases, though strictly legal, is not
appropriate and should not ordinarily be followed :
i. Cases which are prima facie likely, in the event of a
conviction, to call for more severe punishment than
can be awarded on summary trial, e.g. Cases against
previously convicted offenders;
ii. cases which are prima facie likely to be long and
complicated:
iii.Cases arising out of disputed title; and
iv. Serious cases in which, for any particular reason, it
is desirable that there should be a full record of the
evidence for future refrence, e.g. Cases in which
Government servants are concerned as accused
persons.
3. The Magistrate should record substance of evidence in all cases, tried summarily.
Attention of the Magistrates is drawn to the provisions of Section 206 and 253 of the
Code of Criminal Procedure,1973, empowering the Magistrates taking cognizance of
petty offences after issuing a special summorns to the accused requiring him either to
appear in person or by pleader before hik on specified date, or if he desires to plead guilty
to the charge without appearing before the Magistrate, to transmit before the specified
date, by post or by messenger to the Magistrate, the said plea in writing and the amount
of the specified in the summons or if he desires to appear by pleader and to plead guilty
to the charge through such pleader, to authorise in writing the pleader to plead guilty to
the charge on his behalf and to pay the fine through such pleader. Under the provisio to
section 206(i) the amount of fine to be specified in such summons shall not exceed
Rs.100 and the petty offence means any offence punishable only with fine not exceeding
Rs.1,000 and the petty offence means any offence so punishable under the Motor
Vehicle,Act 1939, or under any other law which provides for convicting the accused
person in his absence on plea of guilty.
26.The attention of all Magistrates in invite to section 264 of the Code of Criminal
Procedure,1973, which requires that the substance of the evidence of each
witnesses should be recorded in cases which are tried summarily but in which
appealable sentence are likely to be passed.
(A) Attention fo the Magistrates is invited to the Provisions of Section 262(i) of the Code
of Criminal Procedure, 1973, which provides for summons case procedure for all the
cases triable summarily.
(B) Attention of the Magistriates is invited to the provisions of subsection (1) of Section
265 of the Code of Criminal Procedure,1973,according to which every such judgment in
summary trials shall be written in the language of the Court. In this connection, the
attention of the Magistrates is invited to the orders, contained in High Court Circular
Letter No.P0101/II/71,dated 15th March 1974, read with High Court Circular No.A
0606/56, dated 22nd December 1956 and Government Notification No.OFL 1066(ii)
M,dated 30th March,1966, published in part IVA of the Maharashtra under section 558
of the Code of Criminal Procedure, 1898, which inter atia provides that the language of
the Court would be “Marathi” excepting for the purposes mentioned therein which
include charge, notes of evidence, order and Judgment of the Criminal Court. The said
notification is saved under section 448(2) of the Code of Criminal Procedure, 1973.
Medical Witnesses
27.(1) Section 291 of the Code of Criminal Procedure,1973, requires that the
deposition of a medical witness should be not only taken, but also attested in the
presence of the accused by the Magistrate, in order to render it admissible in other
proceedings. An attestation in the following form should, therefore,always be
appended to such depositions, namely :
“Taken before me and signed by me in the presence of the accused, to whom the
deposition was explained and opportunity given in crossexamine.
Signature of Magistrate)
Date :
2. Care should be taken to record medical evidence fully and intelligently on
all the salient points so that a second examination by another Court may
not be necessary. The evidence should be fully interpreted to the accused,
if necessary, and he should be opportunity to crossexamine the medical
witness.
Local Inspection
28.In all important cases under inquiry or trial before a Magistrate, where a just
appreciation of the evidence requires some knowledge of the scene of the alleged
offence, the Magistrate may personally visit the scene either before or during the
inquiry or trial, so that he may more readily understand the statements of witness.
Care should be taken to see that the provisions of section 310 of the code of criminal
Prodedure, 1973 are strictly complied with.
Judgment of Conviction
29.(1) The attention of the Magistrates is invited to the ruling reported in A.I.R. 1966
S.C. Page 22 (Mahant Koushalya Das Vs. State of Madras) which lays down that
the admission of the accused shall be recorded as nearly as possible in his own
words. The provisions of section 252 of the Code of Criminal Procedure, 1973,
are manadatory.
2. Attention of the Magistrates is invited to provisions of subsection (2) of section
248 of the Code of Criminal Procedure, 1973, which provides that the Court shall
hear the accused on the question of sentence before passing it.
3. When a Magistrate decides to impose to sentence of imprisonment, he should
arrange to supply free of cost a copy of the judgment to the accused immediately
after the pronouncement of the judgment. The carbon copies of the judgment as
far as possible should be taken out at the time of typing the original judgment to
furnish them to the convicts.
Sentence of Fine Awarded to Military Personnel
30.(1) Military personnel who have to undergo imprisonment in jail, however short
the period of imprisonment may be, are after release from Jail discharged or
dismissed from service although the imprisonment may be merely in default of
the payment of fine. The inability of the military personnel, sentenced merely to
fines in respect of petty offence, to pay the fines would, in cases where a sentence
of imprisonment in default of the payment of fine is imposed, involve the very
serious consequence of dismissal from service after the period of imprisonment in
default of the payment of fine is undergone. The penalty in such cases would,
therefore, be too severe.
2. Magistrates should in such cases take the above circumstances into
consideration when exercising discretion in the matter of imposing a
sentence of imprisonment in default of the payment of fine, which is
discretionary under section 64 of the Indian Penal Code.
3. Where Military personal are unable to pay the amount ordered to be
recovered, the Magistrate may, instead of imposing sentence of
imprisonment in default of the payment of fine, ascertain from the
individual concerned his ame identity, particulars of his regiment and
Commanding Officer and other particulars, and communicate the same to
the Collector of the District with a warrant under section 421 of the Code
of Criminal Procedure, 1973, for the recovery of thefine or dues. The
collector can be then forwarded the warrant to the commanding Officer
concerned for recovery of the amount of fine or dues from the pay or
allowances of
the individusal concerned, as provided, as provided under section 90(f) or 91 (h) of the
Army Act, 1950.
Cases under Chapter VIII of the Code of Criminal Procedure, 1973
31.(1) The Magistrates should bear in mind the privisions of sections 119 and 122 of
the Code of Criminal Procedure, 1973 and direct that when a person ordered to
furnish security or to undergo imprisonment in default of furnishing security is
undergoing a sentence of imprisonment passed by any Court, the period for which
security is required and the period of imprisonment in default of security shall
commence after the expiry of the sentence which the person is undergoing.
2. Before the expiry of his sentence, a prisoner may offer security, which the
Magistrate may reject or accept. If the security has not been offered or has
been rejected, the Magistrate should fix a date immediately after the expiry
of the sentence, for furnishing security and for determining in cases under
section 109 or 110 (vide section 122 (7) and (8) whether imprisonment in
efault should be simple or rigorous. All proper facilities for furnishing
security should be given to the prisoner, but he need not be brought before
the Magistrate if he intimates that security will not be offered.
3. Attention of the Magistrates is invited to the following instructions
contained of High Court Circular Letter No.P.0101(ii)/71, dated the 6th
March 1974, pointing out that the Code of Criminal Prodecure,1973 (Act
II of 1974) provides that the Judicial Magistrate has to adjudicate in the
cases under under Chapter VIII of the Code of Criminal Procedure, 1973
known in common parlance as “Chapter Cases” and that these cases should
be instituted and heard in the Court of the Judicial Magistrates from 1st
April,1974 and that a separate register for filing of these cases should be
maintained and they should be numbered separately :
i. All criminal cases, including the “Chapter Cases”
arising from the jurisdiction of Judicial Magistrates
who have their Courts not merely in the District
headquarters but also in the same compound or
adjacent to the Court of the Chief Judicial Magistrate
should be first instituted and registered in the Court
of the Chief Judicial Magistrate.
ii. The Chief Judicial Magistraate should, in his turn,
distribute them amongst the Judicial Magistrates
sitting in the compound in which his Court is situate
or adjacent to the compound. The cases should be
distributed, as far as possible, according to the Police
Stations alloted to each Judicial Magistrate.
iii.The “Chapter Cases” (Cases arising out of sections
108, 109 and 110 of the Code of Criminal
Procedure, 1973 (Act II of 1974) mentioned in (i)
above should be first registered in the Court of the
Chief Judicial Magistrate, as indicated above. They
should, however, be registered in a
separate Register maintained in this court for that purpose. These cases should then be
distributed by the Chief Judicial Magistrates in the same manner in which other Criminal
cases are distributed as stated above. The Judicial Magistrates to whom these “Chapter
Cases” are transferred should also maintain separate Registers for these cases.
iv. Criminal Cases and “Chapter Cases” arising the jurisdictions of Judicial
Magistrates in the Taluke places or of those Judicial Magistrates at the
headquarters whose Courts are at a distance from the court of the Chief
Judicial Magistrate should be received by them and registered in separate
Registers maintained for that purpose.
32.It has been observed that orders for imprisonment for failure to furnish security
under Chapter VIII of the Code of Criminal Procedure, 1973 are frequently passed
against youths below the age of 21, and that such Magistrates do not consider the
alternative of passing orders of detention in a Borstal school in fit cases instead of
imprisonment in jail.
The attention of the Magistrates is, therefore drawn to sections 6 and 9 of the Bombay
Borstal Schools, Act XVIII of 1929 which provides for the passing of orders of detention
in Borstal School. The Magistrate should carefully consider in the case of a youthful
person, the advisibility of passing an order of detention in the Borstal School instead of
an order of imprisonment.
33.It has been observed that proceedings under Chapter VIII of the code of Criminal
Procedure, 1973, are permitted by the Magistraate to be instituted against persons
below the age of 16 who are “children” within the meaning of the Bombay
Children Act,1948 (LXXI of 1948), and sometimes Magistrates even pass orders
against these children for the execution of bonds under the same Chapter.
The attention of the Mgistrates is, therefore, invited to the provisions of section 70 of the
Bombay Children Act, 1948 (LXXI of 1948) which prohibits institution of any
proceedings or passing of any orders under Chapter VIII of the Code of Criminal
Procedure 1973 against a child. The Magistrates should satisfy themselves by medical or
other evidence as to the age of any person against whom proceedings under the same
Chapter are instituted, if they have reason to believe that such persons is, or such a person
appears to be, below the age of 16 years. Police reports or private complaints sometimes
do not state the age of the person. The Magistrates should invariably insist upor the age
being stated in the proceedings and delete the names of such persons who have not
completed the age of 16.
34.The object of the proceedings under Chapter VIII of the Code of Criminal
Procedure, 1973 is to prevent, and not to punish, a crime or breach of the peace.
Delay may defeat the very object of these proceedings; and, therefore,
proceedings under this Chapter should be disposed of with utmost expedition and
the least possible harassment and trouble to the parties. Attention of the
Magistrates is invited to the provision of subsection (6) of Section 116 of the
Code of Criminal Procedure, 1973 under which the inquiry must be completed
within a period of six months from the date of its commencement. If such inquiry
is not so completed, the proceedings under Chapter VIII of the Code of Criminal
Procedure, 1973, on the expiry of the said period of six months, stand terminated,
except in cases wherein it is directed by an order recording special reasons in
writing.
CHAPTER IV
TRIALS BY COURTS OF SESSION
HOLDING OF CRIMINAL SESSIONS
1. The Court of Session shall ordinarily hold its sittings at such place or places as the
High Court may by notification specify. However, the Sessions Court is at librty to hold
its sittings at any other place or places in the Sessions division if it is convenient to the
parties.
Record of Proceedings
2. In all cases tried by Sessions courts, the diary of the proceedings shall be maintained in
english in Form No.XXII, Chapter XXXIII of Criminal Manual.
3. (1) In all trials by Courts of Session, the presiding Judge shall record briefly, in
writing, in english, the substance of trhe arguments of the Public Prosecutor and the
lawyer for the defence, if any, and the notes so made shall be included as exhibits in the
papers of the case.
(2) The Sessions court, on receiving authentic information that the State Appeal for
enhancement of sentence is pending in the High court, should suomotu stay the hearing
of the appeal pending before it.
Police and Medical witnesses
4. Whenever a Medical Officer is questioned about the rsult of his examination of any
person, corpse or substance, evidence should always be taken to prove that the person,
corpse or substance examined by him and to the examination of which he testifies, is the
person, corpse or substance in question in the case. For this purpose, the evidence of the
person, who conveyed the corpse to the Medical Officer, should be taken. the fact may
also proved by affidavit under Sec. 296 of the code of Criminal Procedure, 1973.
5. Sessions Judges should note that the power contained in Section 291 (1) of the Code of
Criminal Procedure, 1973, enabling the Sessions Court to treat the deposition of a
medical witness taken before the Magistrate as evidence, should not ordinarily be
exercised in murder cases.
Arrangement during Vacation
6. (1) Sessions courts must be kept open during the annual vacation for six weeks of the
District Court. The Sessions Judges and their assistants may, however, be permitted by
the High court to absent themselves from their districts during the vacation, provided
arrangements are made for the disposal of all crimninal work received before the pending
at the commencement of the vacation.
(2) During Summer Vacation, it is only the Civil courts which are closed and not the
Criminal Courts. Under the Bombay Civil Services Rules, 1959, unlike Judges of Civil
Courts, Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges do
not belong to Vacation Department. They are entitled to privilege kleave instead of
vacation. Strictly, therefore, so long as Criminal work is pending, the Sessions Judges,
Additional Sessions Judges and Assistant Sessions Judges cannot enjoy kthe vacation.
All the Judicial Officers, including Sessions Judges, Additional Sessions Judges and
Assistant Sessions Judges are, however, allowed to enjoy Summer Vacation of two weeks
every year, subject to the conditions that all the Criminal work pending at the
commencement of the Summer Vacation should, as far as possible, be disposed of during
the vacation. The Sessions Judges should not take more than two weeks, vacation unless
they have disposed all the Criminal work pending in their Courts at the commencement
of the vacation. They should note that they are allowed to avail of a part of the vacation
merely by way of concession and not as a matter of privilege.
All the Criminal work received before the vacation should be disposed of during the
vacation. This is the minimum quantum of work expected to be turned out during the
vacation and no Sessions Judge or Additional Sessions Judge should be permitted to
enjoy any part of the vacation unless such minimum work is disposed of.
During the summer vacation, the Judges should pay sufficient attention to the disposal of
Criminal work in order to avoid any accumulation of such work, giving rise to the
consequent necessity to engage themselves in doing this work at the cost of mounting up
of Civil arrears, on the reopening of the Court after vacation. All the Sessions cases and
other Criminal work received before the commencement of the vacation shall be availed
of by any of the Sessions Judges, Additional Sessions Judges and Assistant Sessions
Judges without fulfilling the aforesaid conditions ( Vide High Court circulars Nos. A.
1223/51, dated 27th August 1951, 18th March 1961, 6th November 1965 and No. A.
1229/63, dated 5th May 1965).
CHAPTER V
LEGAL AID
Engagement of Advocate or Pleader appointed for the defence of persons accused of
offences punishable with death
1. The following procedure and conditions have been prescribed in regard to the
engagement of Advocate or Pleader for the defence of persons accused of offences
punishable with death :
(1) In all cases committed for trial in the court of a Sessions Judge, and in confirmation
cases, Appeals from acqrittals and enhancement proceedings in revision, in which any
person is liable to be sentenced to death, the accused shall be informed at the time of his
committal or trial unless he intends to make his own arrangement for legal assistance, the
high court will engage an Advocate or Pleader at the Government expense to appear
before it on his behalf. If it is ascertained that he does not intend to engage an Advocate
or Pleader at his own expense, an Advocate or a Pleader shall be engaged by the higher
Court concerned to undertake his defence, and his remuneration shall be paid by
Government.
(2) The fee of the Advocate or the Pleader for defence will be :
(i) on the Appellate Side of the High court, on the same scale as is laid down in the Law
Officers' Rules for the Government Pleader or the Public Prosecutor appearing for the
prosecution in such cases. Such fee will be calculated according to the number of the
accused persons for whom the advocate or pleader is engaged.
(ii) in the Sessions Court, as laid down in Rules 23 and 24 of the Bombay Law Officers
( Conditions of Service) Rules, 1939, as amended from time to time recommendations of
higher fees in any particular case may be made to Government by the court which decides
the case.
(3) The appointment of an Advocate or a Pleader for the defence should not be deferred
until the accused has been called upon to plead. The Advocate or Pleader should always
be appointed in sufficient time to enable him to take copies of the depositions and other
necessary papers which should be furnished free of cost, before the commencement of the
trial. He should also be allowed to make copies of depositions of witnesses and other
necessary papers during the trial, in Sessions case without charging any fees if he applies
for the same. If, after the appointment of such Advocate or Pleader, the accused appoints
another Advocate or Pleader, the Advocate or Pleader appointed by the court may still, in
the discretion of the court, be allowed his fee for the case and the copies already prepared
will be available upon the payment for the use of the Advocate or Pleader privately
appointed by the accused.
(4) In case tried before the Sessions Judge in the Mofussil, the payment of the fees is
made by the Treasury Officer to the District Judge on a certificate being furnished with
the bill that the Advocate or the Pleader was engaged with the authority of the Presiding
Judge. the countersignature of the Legal Remembrancer on such bills is not necessary.
In those Sessions Courts, in which the District Public Prosecutors have an establishment
of one or more copyists under them, the copies required by the Advocate or Pleader for
the defence should be prepared by those copyists under the orders of the District Public
Prosecutors. If, in urgent cases, this is found impossible, the District Public Prosecutor is
authorised to employ temporarily a copyist, or, if that is not possible, to obtain the
necessary copies from the Court's sectioners, and in each instance the District Public
Prosecutor should report the circumstances and the cause of emergency to the
Remembrancer of Legal Affairs. In the case of District Prosecutors, who have no copying
clerks under them, the copies needed for the Advocate or pleader for the defence must be
obtained by the Public Prosecutors in the same way in which they obtained copies for
themselves. , viz. through the Court's sectioners and they should charge for such copies in
their monthly bills, which are sent to the Remembrancer of Legal Affairs for
countersignature. In small cases, the District Government Pleader might often be able to
save the expense of a double set of copies by allowing the Advocate or the Pleader for the
accused the use of his own copies.
(5) The fee chargeable under the Bombay Court Fees Act, 1959 (Maharashtra Act No.
XXXVI of 1959) on the copies have been remitted by the Government of Maharashtra.
(6)( The fee payable to the Advocate or the Pleader for the defence is Rs.50/ per day for
every day on which he actually conducts the case subject to a maximum of Rs.250/
which is also subject to an increase as provided in Rules 23 and 26 of the Bombay Law
Officers ( Conditions of Service ) Rules, 1939, as amended from time to time.
(7) In all cases committed to the Court of Sessions for Greater Bombay in which a person
is accused of an offence for which he is liable to be sentenced to death, the accused shall
be informed that, unless he intends to make his own arrangement for legal assistance, the
Court of Session will engage an Advocate at Government expense to appear before it on
his behalf. If it is ascertained that he does not intend to engage an Advocate at his own
expense, an Advocate shall be engaged by the Court of Session to undertake the defence
and his remuneration shall be paid by Government.
The fee of such an advocate for the defence in the Court of Sessions for Greater Bombay
shall not exceed Rs. 150/ per day for every day on which he actually conducts the case
subject to a maximum of Rs. 600.
Recommendation for higher fees in any particular case may be made to Government by
the court which decides the case.
The appointment of such an Advocate for the defence should not be deferred until the
accused has been called upon to plead. The Advocate should always be appointed in good
time to enable him to take copies of the depositions and other necessary papers which
should be furnished free of cost before the commencement of the trial. If, after the
appointment of such an Advocate, the accused appoints another Advocate, the Advocate
appointed by the court may still in the discretion of the court be allowed his fee for the
case, and the copies already prepared will be available upon the payment for the use of
the Advocate privately appointed by the accused.
2. The Junior Advocates engaged by the State to defend pauper accused in case of
confirmation of death sentences referred to the High court should be paid at the rate of
Rs. 100 for preparation and perusal of the first five hours' hearing and Rs. 10 per hour as
refresher subsequently. The junior counsel similarly engaged for defence in all murder
cases going in appeal before the High Court should also be paid at the same rates.
3. The advocates appointed amicus curie todefend pauper accused, at the admission stage
in Jail Appeals, involving a sentence of imprisonment for 7 years or more, should be paid
fees at ther ate of Rs. 20 for one appellant and rs. 8 for every additional appellant, subject
to maximum of Rs. 68 in one Criminal case. In case the appeal is admitted, the Advocate
appointed at the admission stage should, as far as practicable, be appointed also at the
final hearing of the said Criminal case, and he should be paid the difference between the
fees already paid at the above rates and the fees that would have become payable in the
said case if the Advocate had been appointed only at the final hearing stage. In cases
where it becomes necessary to appoint another Advocate at the final hearing stage, such a
new Advocate should be paid the fees becoming payable to an Advocate appointed at the
final hearing stage only, without making any deductions.
Free Legal assistance to undefended accused persons whose annual income does not
exceed Rs.1,800 in Sessions Cases in the Mofussil.
4. The following are the rules issued by the State Government for the grant of free legal
assistance to the undefended accused persons whose annual imcome does not exceed
Rs.1,800 in Sessions Cases in the mofussil :
(1) Definitions – (a) “ Legal Aid” means the aid given by the State to a person for
meeting the fee of the Advocate or Pleader as may be prescribed from time to time and
includes any other aid given in connection with the litigation for which an Advocate or a
Pleader is engaged, as the Government may decide upon :
Provided that the legal aid is restricted to Sessions cases other than murder cases in which
defence is available to pauper accused in the mofussil.
(b) “Poor person” means a person certified to be so poor by the court as not having the
means to engage an Advocate or a Pleader of his own for the conduct of his cae, appeal,
original petition or revision before the Court or answering such other conditions, if any,
as Government may prescribe.
explanation A person whose gross average yearly income for the five preceding calendar
years is not more than Rs.1,800 and who has no other means of raising funds shall
ordinarily be considered as a poor person for the purpose of these rules.
© “Court” means a Court of Session whether presided over by a Sessions Judge,
Additional Sessions Judge or Assistant Sessions Judge.
(d) “Sessions case” includes appeal, original petition or an application for revision in the
Court.
(2) Authority to decide capacity of person to engage an Advocate or a Pleader
(i) Every Sessions Judge or Additional Sessions Judge or Assistant Sessions Judge is
authorised to certify or report whether the person applying for legal aid is poor or not.
(ii) every application for legal aid shall be made to the court before which the proceeding
is to be instituted or pending, as the case may be, and shall be in the form ( given below).
No court fee shall be payable on such applications.
(3) Panel of Advocates or Pleaders for legal aid (a) The appointment of an Advocate or a
Pleader for the poor under these rules shall be made from a Panel of Advocates or
Pleaders for each Court constituted each year by the Sessions Judge of the Court in
consultation with the President of the Bar Association, if any ( who may consult its
executive committee). The Panel should include the President of the Bar Association or at
least one Senior Advocate or Pleader who may be called upon to be an Advocate or
Pleader in any important case where legal aid is to be given. The persons included in the
panel should have at least a standing of five years as practising Advocates or Pleaders.
Normally the Presiding Officer should not make an appointment from outside the panel,
but he may do so for any exceptional reason to be recorded in writing.
(b) Notwithstanding anything to the contrary, in case of criminal proceedings pending on
the date of promulgation of these Rules and to which a poor person is a party, on
application in that behalf to the Court, the Advocate or Pleader engaged by him shall be
recognized to be the advocate or Pleader engaged by the Court under these rules and shall
be paid the fees admissible under these rules :
(i) The panel shall be constituted every year, normally for the period from 1st January to
31st December :
Provided that an Advocate or Pleader shall continue in a case, for which he is engaged,
till its completion even if the case is not closed in that year.
(ii) All persons included in the panel shall express in writing to the Sessions Judge of the
Court, as the case may be, their willingness to serve on the panel and thereupon such
persons shall accept engagement in any case and appear in Court when so engaged.
(iii) Any person in the panel may tender his resignation in writing to the authority
constituting in the panel.
(iv) Any vacancy in the panel caused by resignation or otherwise may be filled up by the
Sessions Judge from the Advocates or Pleaders practising in the Court, but the terms of
the person so appointed will expire on the 31st December succeeding the date of
appointment.
(v) If any person after having agreed to serve on a panel neglects or refuses to accept an
engagement, he shall forthwith cease to be a member of the panel and shall be debarred
from being reappointed to a panel.
(vi) If any Advocate or Pleader, after accepting an engagement, neglects or refuses to
discharge his duties properly, the authority which sanctioned the engagement may
remove the Advocate or Pleader and appoint another in his place. Such removal will
entail the consequence mentioned in subrule (5).
(vii) Any person serving on a panel shall be eligible for reappointment.
(viii) Cases in which legal aid is sanctioned may be distributed among the members of
the panel equitably at the discretion of the Sessions Judge of the Court.
(4) Fees—In Criminal cases before the Sessions Court and Additional and Assistant
Sessions Courts, the Advocate or Pleader shall be entitled to a fee payable in accordance
with the Law Officers (Conditions of Service) Rules, 1939, as amended from time to
time, for the Public Prosecutor subject to a maximum of Rs.150 in the aggregate :
Provided that in cases of unusual importance or difficulty or in which marked industry or
ability has been displayed, Government may sanction such fees to the Advocate or
Pleader in relaxation of the said maximum limit, as may be deemed fit.
(5) Disbursement of fees.The fee for the Advocate or Pleader engaged for the poor in
the Court should be disbursed by the Presiding Officer of the Court on the Advocate or
Pleader passing receipt to the Court accompanied by a certificate as per rule 6.
(6) Certificate. The certificate to be submitted to the Court shall contain the following
details :
(a) the number of days on which actual work is done;
(b) the duration of work for each day;
© the Advocate or Pleader has not received any fees from the poor account person;
(d) the fee payable to him as these rules;
(e) in case of appeals and revisions, a statement that in his opinion it was a fit case for
appeal or revision, as the case may be.
(7) Courts to maintain accounts. The Court shall maintain accounts of the Advocates' or
Pleaders' fee paid under these rules.
(8) Pleader not to receive any fee from party. The Advocate or Pleader to whom fee is
due or paid under this scheme shall not be entitled to nor shall be receive any fee from the
party.
(9) Saving. Notwithstanding anything contained in these rules, it shall be competent for
the Government to issue from time to time any direction or instruction with a view to
implementing the scheme for legal aid to the poor, having regard to the special
circumstances of any case.
Form of Application for Legal Aid
1. Name of the Court .. ..
2. Name of Criminal and Sessions Cases.
3. Name, description and place of
residence of the applicantaccused.
4. Average monthly income of the
applicant.
engage an Advocate or Pleader of my/our own in the above _________________ I/We,
therefore, pray that the Court may be pleased to engage an Advocate or a Pleader for
me/us in the above___________.
Signature of Appellant/s.
Forwarded to __________________ for enquiry and report before________
Presiding Officer.
Legal Aid to the Members of the backward classes whose annual income
does not exceed Rs.3,600/ and who have to file writ petitions or to
institute or defend Civil proceedings or Criminal proceedings
under the Mamlatdars' Courts Act, 1906.
5. The rules issue by the State Government for the grant of legal assistance at the cost of
Government to the members of the backward classes whose annual income does not
exceed Rs.3,600/ and who have to file writ petitions or to institute or defend Civil
proceedings or Criminal proceedings under the Mamlatdars' Courts Act, 1906, are as
follows :
(1) Short title and extent. (1) These rules may be called the Maharashtra Legal Aid to
Backward Classes Rules, 1963.
(2) These rules extend to all proceedings in Civil and Criminal Courts (including
Mamlatdars' Courts functioning under the Mamlatdars' Courts Act, 1906) or before any
public officer in the State outside Greater Bombay and also to file writ petitions and to all
proceedings relating to appeals or revisions applications in the High Court against the
decisions of the lower Courts in areas outside Greater Bombay.
(1A) Definition. In these rules,
(a) “High Court” means the High Court of Judicature at Bombay including the permanent
Reorganization Act, 1960;
(b) “ Law Officer “ means
(i) the Government pleader, High Court, Bombay or Additional Government Pleader,
High Court, Nagpur and his Assistants;
(ii) Government Pleader and Public Prosecutor and his Assistants;
(iii) Subordinate Government Pleader in a Taluka Town;
© “ Nomadic Tribes and Vimukta Jatis” means Nomadic Tribes and Vimukta Jatis
determined as such by the State Government from time to time;
(d) “person belonging to a backward class” includes a person belonging to a Scheduled
Caste or Scheduled Tribe, Vimukta Jatis,
Nav Buddhas, Tribals outside specified areas of Vidharbha Regions and Nomadic Tribes
whose income does not exceed Rs.3,600 per annum;
(e) “Scheduled Castes” means such castes, races or tribes or parts of, or groups within,
such castes, races or tribes as are deemed to be Scheduled Castes in relation to the State
of Maharashtra under Article 341 of the Constitution of India;
(f) “Scheduled Tribes” means such tribes or tribal communities or parts of, or groups
within, such tribes or tribal communities as are deemed to be Scheduled Tribes in relation
to the State of Maharashtra under article 342 of the Constitution of India;
(1B.) Legal Assistance to undertrial prioners, In any case in which a person belonging
to a Backward Class is arrested for any offence, the Court before whom such person is
brought may, if it considers that legal assistance should be given to such person, appoint
an Advocate or Pleader to give such person such assistance as he may require.
2. Assistance to persons against whom proceedings are instituted. In any case in which
civil proceedings or in any case in which criminal proceedings or criminal proceedings
which a person belonging to a Backward Class believes are really disguised civil
proceedings or are intended to intimidate him are instituted against such person, the
Social Welfare Officer of the District within whose jurisdiction such person resides may,
if such officer considers that legal assistance should be given to such person, appoint Law
Officer for such person in such proceedings :
Provided that if no Advocate or Pleader is appointed to appear on behalf of such person
by the Social Welfare Officer of the district, the Court before whom such proceedings are
pending may, if it considers that legal assistance should be given to such person, appoint
a Law Officer to appear for such person in such proceedings.
2A. Assistance to persons who intend to file Writ Petitions. In any case in which a
person belonging to Backward Class desires to file a Writ Petition, he may make an
within whose jurisdiction he resides. If the officer to whom an application is made is
satisfied that the case is one in which legal assistance should be given, he shall record his
reasons for such order. He shall then forward a copy of such order to the Registrar, High
Court, Appellate Side, Bombay or the Special Officer, High Court at Nagpur, as the case
may be, where the Writ Petition is to be filed for appointment of a legal practitioner to
give the applicant legal advice and, if necessary, to file the Writ Petition.
3. Assistance to persons who intend to institute proceedings.In any case in which a
person belonging to a Backward Class desires to institute civil proceedings or criminal
proceedings in noncognizable cases, he may make an application for the grant of legal
assistance to the Social Welfare Officer of the district within whose jurisdiction he
resides. If the Officer to whom an application is made is satisfied that the case is one in
which legal assistance should be given, he shall record his reasons for such order, and
appoint an Advice or a Pleader to give the applicant legal advice and, if necessary, for
instituting the proceedings on his behalf.
4. If any proceedings under the Mamlatdars' Courts Act, 1906, are instituted against a
person belonging to a Backward Class or if such person is a party to any proceedings
before any public officer in which an Advocate or Pleader appears on behalf of the other
party, the Court or the officer before whom such proceedings are pending shall appoint a
Law Officer, if necessary, to appear for such person in such proceedings.
proceedings under the Mamlatdars' Courts Act, 1906, he may make an application for the
grant of legal assistance, if he resides in any place in which the Social Welfare Officer
concerned has jurisdiction, to such officer or if he resides elsewhere, to the Tahsildar of
the Taluka in which he resides. He shall state in such application all the facts of the case.
The officer to whom an application is made under this rule shall consider it and pass an
order granting or refusing legal assistance. He shall record his reasons for such order. If
he passes an order that legal assistance should be given, he shall appoint a Law Officer to
appear on behalf of the applicant or to give the applicant legal advice and, if necessary,
institute proceedings on his behalf.
(2) A copy of every order passed under subrule (1) of this rule by a Tahsildar shall be
sent to the Social Welfare Officer of the District concerned.
6. If, in any case in which legal assistance is granted to any person under these rules, the
decision of the Court is against him, the question whether an appeal or revision
application (including appeals or revision application in the High Court to which these
rules extend) should be filed shall be decided by the Officer or Court granting him
assistance, in consultation with the Law Officer appointed in the case in the first Court
aforesaid.
6A. The powers and duties conferred and imposed under these rules on a Court for grant
of legal assistance to persons belonging to a Backward Class shall, so far as proceedings
in the High Court to which these rules extend are concerned, be exercises and performed
in these proceedings by the Registrar High Court, Appellate Side, in Greater Bombay,
and by the Special Officer, High Court, at Nagpur.
7. (1) In all cases in which legal assistance is granted in Writ Petitions or civil
proceedings to any person under these Rules, an agreement in writing shall be taken from
such person that any sum recovered by such person from the other party as compensation,
damages or costs shall be paid by him to Government in reimbursement of the costs
incurred by it in respect of such legal assistance and only the balance, if any, remaining
thereafter shall be retained by such person.
(2) The Advocate or Pleader appointed to appear for such person should pay the stamp
duty leviable in respect of the agreement and include the amount thereof in the bill of fees
and other expenses submitted by him under subrule (1) of rule 11.
8. (1) Save for special reasons which shall be reported to the Remembrancer of Legal
Affairs, the Advocate or Pleader appointed under these rules should be appointed from
amongst the Law Officers :
Provided that, the Law Officer (not being the subordinate Government Pleader, Assistant
Government Pleader or the Assistant Public Prosecutor) may entrust the case toone of his
assistants.
(2) If in any case in which a Law Officer is not available or cannot for any reason be
appointed or a specific request to that effect is made by the person to whom legal
assistance is granted, the Social Welfare Officer concerned or the Registrar High Court,
Appellate Side, in Greater Bombay, or, as the case may be, the Special Officer, High
Court at Nagpur, may appoint any other legal practitioner in place of the Law Officer.
9. The fees to be paid to the Law Officer appointed under these rules shall not, save with
the sanction of Government, exceed, if he is a Law Officer of Government, the fees
admissible to him under the Law Officers (Conditions of Service) rules, as amended from
time to time, and if he is not a Law Officer, the fees admissible to the Law Officer under
the said rules, in whose place he is appointed. In any case not provided for in those rules,
such fees shall be paid as the Remembrancer of Legal Affairs may consider reasonable
and proper.
provisions of Rule 7, be borne by Government.
11. (1) Every bill of fees and other expenses incurred shall be submitted by the Law
Officer or, as the case may be, the Advocate or Pleader appointed in the case for the
countersignature of the Remembrancer of Legal Affairs through the Officer (including
the Registrar or Special Officer, High Court) or Court appointing him.
(2) Such bills in Civil cases should be submitted as soon as possible after each case has
been decided and in criminal cases, bills in respect of fees earned and charges incurred in
any month should be prepared and submitted in the next following month, whether the
case to which they relate has been finished or not;
Provided that for initial expenses, the Law Officer or, as the case may be, the Advocate or
Pleader appointed should prepare an advance bill once in a month and submit it for the
countersignature of the Remembrancer of Legal Affairs through the Officer or Court
appointing him:
Provided further that when, as in the case of Court fees required or process fees and diet
money and such other necessary expenses needed, the Law Officer or, as the case may be,
the Advocate or the Pleader concerned has to pay any sum at once, he may submit a
separate bill for such sum immediately for countersignature of the Remembrancer of
Legal Affairs through the Officer of Court appointing him.
In Civil cases, such advances should be accounted for when the case is finally decided
and in criminal cases they should be accounted for along with the monthly bill for fees
and Law charges.
(3) The order authorising such Law Officer, an Advocate or Pleader to appear in the case,
together with a certificate from the Officer or Court concerned as to the accuracy of the
dates for which the fees are claimed, should be sent along with the bill. In civil cases, a
copy of the Court's decree should also be sent. The Remembrancer of Legal Affairs may
call for such other information or documents as he may consider necessary, in order to
enable him to determine whether the amount claimed in the bill is correct and proper.
(4) If the Legal Remembrancer is satisfied that the bill is in order, he shall countersign it
and return it to the Law Officer or, as the case may be, the Advocate or the Pleader
concerned, who shall then present it at the treasury for payment.
(5) The amount of every such bill shall be debited to the provision made for the purpose
so far as Law Officers, Advocates or Pleaders in Greater Bombay, are concerned, under “
payment for professional and special services,” and so far as Law Officers, Advocates or
Advisors and Counsels—M(II)Mofussil Officers payment for professional and special
services,” and shall be controlled by the Remembrancer of Legal Affairs. (Note.This
Mamlatdars' Courts Act, 1906, is continued by Government every year for a period of
one year only ending on 31st March and is last continued upto 31st March 1981.)
Rules for the grant of Free Legal Aid to Indian Soldiers and their Families
6. Rules for the grant of free legal assistance to Indian Soldiers and their families in Civil
and Criminal cases are as follows :
1. Title.These rules may be called the Maharashtra Legal Aid (Indian Soldiers) Rules,
1963.
2. Definitions. In these rules, unless the context otherwise requires,
(1) “Act” means the Indian Soldiers (Litigation) Act, 1925;
(2) “ Court “ means a Civil or Criminal Court and includes the High Court;
(3) “ Indian Soldiers “ means any person domiciled in the Maharashtra State and subject
to the Army Act, 1950 or the Air Force Act, 1950 or the Navy Act, 1957. (Vide
Government Resolution, Law and Judiciary Department, No. DFS. 1063/10793J, dated
25th August 1964.)
(4) “ Legal aid “ means the aid given by State Government to a person regarding the fees
of a legal practitioner as may be prescribed from time to time, and includes any other aid
given in connection with any civil or criminal proceedings for which a legal practitioner
is engaged, as Government may decide.
(5) “ Member of a family “ means a wife, child, father, mother, minor brother or
unmarried or widowed sister wholly dependent on an Indian soldier and also extended to
the following 2 categories of service personnel and their families, viz.;
(a) Personnel killed or disabled or missing as a result of clash with hostile foreign
nationals on Jammu and Kashmir Ceasefire line or the Chinese line of actual control in
NEFA or LADAKH or on/across the border of India with foreign countries with effect
from 1st April 1965.
(b) Personnel who die as a result of adverse climate or a high altitudes in forward areas.
(Vide G.R., L. & J.D., No. DFS. 1070/6593J, dated 23rd February 1971.)
(6) “ Proceeding “ includes any criminal case or civil suit, appeal or application or any
complaint or police report :
(7) “ Proclamation of Emergency “ means the proclamation issued by the President of
India under clause (1) of article 352 of the Constitution of India on the 26th October 1962
(8) “ Serving under war condition” means serving under war condition declared by the
Government of India under clause (b) of section 3 of the Indian Soldiers (Litigation) Act,
1925, as constituting a state of war for the purpose of the said Act.
3. Application for legal aid. Every application for legal aid by an Indian Soldier or a
member of his family shall be made to the Court before which the proceeding is to be
instituted or is pending, as the case may be, and shall be in the form accompanying these
rules.
4. Conditions of grant of legal assistance. The legal assistance at the expense of the
State may be provided to an Indian solder serving under was conditions and to the
members of his family :
(a) if, in any proceedings by or against such soldier or such member pending before any
Court on the date of commencement of these rules or in any proceeding instituted in any
Court against such soldier or such member after such commencement, he is,
(i) an unrepresented party not conjointly with others ;
(ii) an unrepresented party conjointly with others, but his interests are not identical with,
and are not adequately represented by such other party or are not of a formal nature, or
(iii) not a party, but is materially concerned in the outcome of the proceeding and his
interests are likely to be prejudiced in the absence of any proper representation ;
(b) if any proceeding is intended to be instituted by such soldier or such member alone to
prevent any one to invade or threaten to invade his right to or enjoyment of his property
or to prevent it from being wasted, damaged or alienated, or to restrain any one from
causing any injury of any kind to such soldier or such member or to recover possession of
any property of which he is dispossessed on or after the date of the Proclamation of
Emergency :
Provided that, in Civil proceedings falling under subclause (i) and (ii) of clause (a), the
Collector shall first be moved to issue a certificate under section 5 of the Act and legal
assistance shall not be provided under these rules unless such proceedings have been
continued by the Court under section 8 of the Act.
5. Panel of Advocates or Pleaders for legal aid .(1) The appointment of an Advocate or
a Pleader for the Indian Soldier or a member of his family under these rules shall be made
from a panel of Advocates and Pleaders for each Court constituted each year by the
Presiding Officer of the Court in consultation with the President of the Bar Association, if
any, (who may consult its executive committee). The panel shall include the President of
the Bar Association or at least one senior member who may be called upon to be the
Advocate or the Pleader in any important case where legal aid is given. Normally, the
Presiding Officer shall not make any appointment from outside the panel, but he may do
so for any exceptional reason to be recorded in writing.
(2) Notwithstanding anything to the contrary, in the case of any civil or criminal
proceedings pending on the date of commencement of these rules and to which an Indian
Soldier or a member of his family is a party, on application in that behalf to the Court, the
Advocate or Pleader engaged by him shall be recognized to be the Advocate or Pleader
engaged by the Court under these rules and shall be paid the fees admissible under these
rules.
Explanation – For the purpose of this and subsequent rules, the powers of the Presiding
Officer of a Court in the case of the High Court shall be exercised by the Prothonotary
and Senior Master or the Registrar, according as the proceedings are on the Original Side
or the Appellate Side of that Court.
6. Term of Penal – (1) The panel shall be constituted every year, normally for the period
from 1st January to 31st December :
Provided that an Advocate or a Pleader shall continue in a case for which he is engaged,
till its completion even if the case is not closed in that year.
(2) All persons included in the panel shall express in writing to the Presiding Officer of
the Court their willingness to serve in the panel and thereupon such persons shall accept
engagement in any case and appear in Court when so engaged.
(3) Any person in the panel may tender his resignation in writing to the authority
constituting the panel.
(4) Any vacancy in the panel caused by resignation or otherwise may be filled up by the
Presiding Officer from the Advocates or Pleaders practising in the Court, but the term of
the person so appointed shall expire on the 31st December succeeding the date of
appointment.
refused to accept an engagement or, after accepting an engagement, neglects or refuses to
discharge his duties properly, the authority which sanctioned the engagement may
remove him from the panel and appoint another in his place. Such removal shall debar the
Advocate or Pleader from being reappointed to the panel.
(6) save as otherwise provided in the last preceding Subrule, any person serving on a
panel shall be eligible for reappointment.
(7) Cases in which legal aid is sanctioned may be distributed among the members of the
panel equitably at the discretion of the Presiding Officer of the Court.
7. Fees – The Advocate or Pleader appointed under these rules shall be entitled to a fee
payable to public prosecutor in criminal cases and to a Government Pleader in Civil cases
in accordance with the Law Officers (Conditions of Service) Rules, 1939.
8. Disbursement of fees – The fee of an Advocate or Pleader engaged for an Indian
Soldier or a member of his family shall be disbursed by the Presiding Officer of the Court
in which the proceedings are instituted on the Advocate or Pleader passing a receipt to
the Court, accompanied by a certificate as per rule 9.
9. Certificate – The certificate to be submitted to the Court shall contain the following
details :
(a) the fee payable to the Advocate or Pleader as per these rules;
(b) in case of appeals and revisions, a statement that,in the opinion of the Advocate or
Pleader, it was a fit case for appeal or revision, as the case may be ;
© in case of any criminal proceedings also,
(i) the number of days on which actual work is done.
(ii) the duration of work for each day.
10. Courts to maintain accounts – The Courts shall maintain accounts of the fees paid to
the Advocate or Pleader under these rules.
11. Advocate or Pleader not to receive any fee from party – The Advocate or Pleader to
whom fee is due or paid under these rules shall not be entitled to nor shall he receive any
fee from the party.
12. Legal aid in appeals – If, in any case in which legal assistance is granted to any
Presiding Officer of the Court, granting him assistance, in consultation with the Advocate
or Pleader appointed in the case.
13. Reimbursement of legal aid to Government where the plaintiff succeeds – (1) In all
cases in which legal assistance is granted in civil proceedings to any person under these
rules, an agreement in writing shall be taken from such person that any sum recovered by
such person from the other party as compensation, damages or costs shall be paid by him
to Government in reimbursement of the costs incurred by it and only the balance, if any,
remaining thereafter shall be retained by such persons;
(2) the Advocate or Pleader appointed to appear for such person shall pay the stamp duty
leviable in respect of the agreement and include the amount thereof in the bill of fees and
other expenses submitted by him under rule 8.
14. Saving – Notwithstanding anything contained in these rules, it shall be competent for
the Government to issue from time to time any direction or instructions with a view to
implement the scheme for legal aid to any Indian soldier or his family, having regard to
the appeal circumstances of any case;
(Note – This scheme of free legal assistance to Defence Personnel and their families is
continued by Government every year for a period of one year only ending on 31st March
and is last continued upto 31st March 1981.)
Form of application for legal aid
1. Name of the Court .. ..
2. Number of Criminal/Civil case ..
3. Name of the applicant .. ..
4. Name, description and place of
residence of the applicant ..
5. Name of the Indian Soldier and
his service details. .. ..
noted above, I/We, therefore, pray that that Court may be pleased to engage an
Signature of applicant/s.
Forwarded to for enquiry and report before
Presiding Officer.
7. Rules for the grant of free legal assistance to low income Exserviceman and their
families in Civil and Criminal cases are as follows :
1. Title – These rules may be called the Maharashtra Legal Assistance (Lowincomeex
servicemen) Rules, 1970.
2. Definition – In these rules, unless the context otherwise requires
(i) “Court” means a Civil or Criminal Court and includes the High Court.
(ii) “Exserviceman” means any person domiciled in the Maharashtra State who has been
released after having served in any rank or as a noncombatant (enrolled) from the Armed
Forces, including the erstwhile Indian State Forces, but excluding the organisations such
as, (i) Assam Rifles, (ii) Lok Sahayak Sena, (iii) General Reserve Engineer Force, (iv)
Indian Territorial Force and Territorial Army, (v) Burma Army, (vi) Auxiliary Force
(Indian.)
Explanation – Dismissed exservicemen are not eligible to get benefit of this scheme.
released on their own request are not eligible to get benefit under this scheme.
(iii) “Lowincomeexserviceman” means an exserviceman whose average income does
not exceed Rs.1,800 if proceedings are held in the mofussil, and Rs.2,500 if proceedings
are held in the Greater Bombay.
(iv) “Legal assistance” given by the State Government to a person regarding the fees of a
legal practitioner as may be prescribed from time to time, and includes any other aid
given in connection with any civil or criminal proceedings for which an Advocate or
Pleader is engaged as Government may decide;
(v) “Member of a family” means a wife, child, father, mother, minor brother or unmarried
or widowed sister, wholly dependent on an exserviceman;
(vi) “Proceedings” includes any criminal case or civil suit, appeal or application or any
complaint or police report;
proceedings is to be instituted or is pending, as the case may be, and shall be in the form
of Annexure A.
be the authority to decide the eligibility or otherwise of the applicant for grant of free
legal assistance.
Explanation – For the purpose of this and subsequent rules, the powers of the Presiding
Officer of a Court in the case of the High Court shall be exercised by the Prothonotary
and Senior Master or the Registrar according as the proceedings are on the Original Side
or the Appellate Side of that Court.
5. Conditions for grant of free legal assistance – The legal assistance at the expense of the
State may be provided to an exserviceman and to the members of his family.
(a) if, in any proceeding by or against such member pending before any Court on the date
of commencement of these rules or in any proceeding instituted in any Court against such
exserviceman or such member after commencement,he is.
(i) an unrepresented party not conjointly with others; or
(ii) an unrepresented party conjointly with others, but his interests are not identical with,
and are not adequately represented by, such other party or are not of a formal nature, or
(iii) not a party, but is materially concerned in the outcome of the proceeding and his
interests are likely to be prejudiced in the absence of any proper representation, or
(b) if any proceeding is intended to be instituted by such exserviceman or such member
alone to prevent any one to invade or threaten to invade his right to or enjoyment of his
property or to prevent it from being wasted, damaged or alienated, or to restrain any one
from causing any injury of any kind to such exserviceman or such member or to recover
possession of any property of which he is dispossessed.
6. Panel of legal practitioner for legal assistance – (1) The appointment of a Legal
Practitioner for the exserviceman or a member of his family under these rules shall be
made from a panel of legal practitioner for each Court constituted each year by the
Presiding Officer of the Court in consultation with the President of the Bar Association, if
any, (who may consult its executive committee). The panel shall include President of the
Bar Association or at least one senior member who may be called upon to be the Legal
Practitioner in any important case where legal aid is given. Normally, the Presiding
Officer shall not make an appointment from outside the panel, but he may do so for any
exceptional reason to be recorded in writing.
(2) Notwithstanding anything to the contrary, in case of any civil or criminal proceedings
pending on the date of commencement of these rules and to which an exserviceman or a
member of his family is a party, on application in that behalf to the Court, the legal
practitioner engaged by him shall be recognized to be the legal practitioner engaged by
the Court under these rules and shall be paid the fees admissible under these rules.
7. Term of panel – (1) The panel shall be constituted every year, normally for the period
from 1st January to 31st December. Provided that a legal practitioner shall continue in a
case, for which he is engaged, till its completion even if the case is not decided in that
year.
(2) All persons included in the panel shall express in writing to the Presiding Officer of
the Court their willingness to serve in the panel and thereupon such persons shall accept
engagement in any case and appear in Court when so engaged.
(3) Any person in the panel may tender his resignation in writing to the authority
constituting the panel.
(4) Any vacancy in the panel caused be resignation or otherwise may be filled in by the
Presiding Officer from the legal practitioners practising in the Court, but term of the
person so appointed shall expire on the 31st December succeeding the date of
appointment.
(5) If any legal practitioner, after having agreed to serve on a penal, neglects or refuses to
accept an engagement or, after accepting an engagement, neglects or refuses to discharge
his duties properly, the authority which sanctioned the engagement may remove him
from the panel and appoint another in his place. Such removal shall debar the legal
practitioner from being reappointed to the panel.
(6) Save as otherwise provided in the last preceding subrule, any person serving on a
panel shall be eligible for reappointment.
(7) Cases in which legal aid is sanctioned may be distributed among the members of the
panel equitably at the discretion of the Presiding Officer of the Court.
8. Fees – The legal practitioner appointed under these rules shall be entitled to a fee
payable to a public prosecutor in criminal cases and to a Government Pleader in Civil
Cases in accordance with the Law Officers (Conditions of Service) Rules, 1939.
9. Disbursement of fees – The fee for a legal practitioner engaged for an exserviceman
or a member of his family shall be disbursed by the Presiding Officer of the Court in
which the proceedings are instituted, on the legal practitioner passing a receipt to the
Court accompanied by a Certificate as per rule 10.
10. Certificate – The certificate to be submitted to the Court shall contain the following
details :
(a) the fee payable to the legal practitioner as per these rules ;
(b) in case of appeals and revisions, a statement that, in the opinion of the legal
practitioner, it was a fit case for appeal or revision, as the case may be;
© in case of criminal proceedings also
(i) the number of days o which actual work is done ;
(ii) the duration of work for each day.
11. Courts to maintain accounts – The Courts shall maintain accounts of the fees paid to
the legal practitioner under these rules.
12. The legal practitioners not to receive any fee from party – The legal practitioner to
whom fee is due or paid under these rules shall not be entitled to nor shall he receive any
fee from the party.
13. Legal assistance in appeals – If, in any case in which free legal assistance is granted
to any person under these rules, the decision of the first Court is against him, the question
Presiding Officer of the Court granting him assistance, in consultation with the legal
practitioner appointed in the case.
14. Reimbursement of legal assistance to Government where the plaintiff succeeds – (1)
In all cases in which free legal assistance is granted in Civil proceedings to any person
under these rules, an agreement in writing shall be taken from such person that any sum
recovered by such person from the other party as compensation, damages or costs shall
be paid by him to Government in reimbursement of the costs incurred by it and only the
balance, if any, remaining thereafter shall be retained by such person.
(2) The legal practitioner appointed to appear for such person shall pay the stamp duty
leviable in respect of the agreement and include the amount thereof in the bill of fees and
other expenses submitted by him under rule 9.
15. Saving – Notwithstanding anything contained in these rules, it shall be competent for
the Government to issue from time to time any direction or instructions with a view to
implementing the scheme for legal assistance to any exserviceman or his family having
regard to the special circumstances of any case.
ANNEXURE II
FORM OF APPLICATION FOR LEGAL AID
1. Name of the Court .. ..
2. Number of criminal/civil case .. ..
3. Name of the applicant .. ..
4. Name, description and place of
residence of the applicant. .. ..
5. Name of the Indian Soldier and his
service details. .. ..
I/We am/are the in
No.noted above. I/We, therefore, pray that the Court may be
above
Signature of applicant/s.
Forwarded tofor enquiry and report before
Presiding Officer.
ANNEXURE III
PROFORMA
Statement showing the expenditure incurred on the legal assistance to exserviceman
during the quarter ending
Serial Name of the Relationship with Nature of Case Expenditure incurred Remarks
No. applicant the exserviceman Civil/Criminal during the quarter
1 2 3 4 5 6
Note – This scheme of free legal assistance to exserviceman and their families in Civil
and Criminal cases is continued by Government every year for a period of one year only
ending on 31st March and is last continued upto 31st March 1981.
Free legal assistance to undefended poor accused persons whose annual income
does not exceed Rs.2,500 in Sessions Cases and Special Cases in
Greater Bombay
8. Rules for the grant of free legal assistance to undefended accused persons whose
annual income does not exceed Rs.2,500 in Sessions Cases and Special Cases in Greater
Bombay, are as follows :
1. Definitions –(a) “Legal Aid' means the aid given by the State to a person for meeting
the fee of the Advocate as may be prescribed from time to time, and includes any such
aid given in connection with the criminal proceedings for which an Advocate is engaged
as Government may decide upon :
Provided that the legal aid is restricted to Special Cases and Sessions Cases pending for
trial or for hearing before the Sessions Court for Greater Bombay, other than murder
cases in which defence is available to poor accused persons.
(b) “poor person” means a person certified to be so poor by the Registrar, City Sessions
Court, Greater Bombay, as not having the means to engage an Advocate of his own for
the conduct of his cases before the Court, or a person answering to such other conditions,
if any, as Government may prescribe.
Explanation – A person whose gross average yearly income for the five preceding
calender years is not more than Rs.2,500 and who has no other means of raising funds
shall ordinarily be considered a poor person for the purpose of these rules.
© “ Court “ or “ Sessions Court “ or “ a Special Court “ and “ or the Special Judge “ for
Greater Bombay means the Court of Sessions for Greater Bombay whether presided over
by the Sessions Judge, or an Additional Sessions Judge, “ or Special Court “ and “ or the
Special Judge for Greater Bombay “.
2. Accused to be given intimation of free legal aid available at the time of trialin the
Court of Sessions – The Court of Sessions should explain to the accused at the time,
when the cse is tried by that Court, the provisions of free legal assistance granted under
this scheme. If, after having explained to the accused the above provisions, the accused
states that his income does not exceed Rs.2,500 per annum, he shall be asked if he desires
to submit an application in the form accompanying these rules, and if such application is
submitted by him, a copy of it shall be forwarded to the Police Officer investigating the
prosecution case to verify the truth of the statement regarding the income as stated in the
application. In cases, however, of private complaints, copies of such applications shall be
forwarded to the Inspector of Police, in whose jurisdiction the offence is alleged to have
been committed. No Court fee shall be payable on such application. The Police Officer
shall submit his report direct to the Registrar of the Sessions Court within a period of
three weeks from the date of receipt of such application of legal aid, by him.
3. Accused in Special Cases to be given intimation of free legal aid available to him The
Registrar, City Sessions Court, Greater Bombay, should explain to the accused person in
Special cases, at the time of of his first appearance in the Court, the provisions of free
legal assistance granted under this scheme. If, after having been explained the above
provisions, the accused states that his income does not exceed Rs.2,500/ per annum, he
shall be asked if he desires to submit an application in Form 'A' (given below) and he can
do so within a fortnight from the date of his first appearance in the Court. If such
application is submitted by the accused person, a copy of it shall be forwarded to the
Police Officer investigating the prosecution case to verify the truth of the statement
regarding income mentioned in such application. The Police Officer shall submit his
report to the Registrar of the Sessions Court within a period of three weeks from the date
of receipt of such application for legal aid by the accused person.
4. Application for legal aid when to be made – An accused person shall submit an
application for legal aid to the Registrar, City Sessions Court, Greater Bombay, as
provided in Rules 2 and 3 within a fortnight from the date of his first appearance in the
Court and if he fails to do so, the Registrar, City Sessions Court, Greater Bombay, shall
ascertain, while intimating the accused person of the receipt of the record of the case in
the Sessions Court or at the time of his second appearance in the Court, as the case may
be, whether he desires that legal aid should be given to him. If he says that he does not
require legal aid or an application for legal aid is not received within two weeks from the
date of receipt of such intimation to him, he shall not be entitled to apply for legal aid
thereafter.
In case of appeal or revision application – If the application for free legalaid is not
forwarded from the jail alongwith the petition of appeal or revision application or is not
made within the time prescribed by these rules in that behalf, the Sessions Court shall
proceed with the hearing of appeal or revision application as if the appellant or the
applicant, as the case may be, does not want free legal aid and such appellant or applicant
shall not be entitled to apply for legal aid under this scheme at any later stage of the
appeal or revision application.
5. Free legal aid in appeal or revision application – (i) The provisions of free legal
assistance granted under this scheme shall be available to the Appellant or the Applicant
who is a poor person after the appeal or revision application is admitted by the Sessions
Court.
application for being forwarded to the Sessions Judge, Greater Bombay, against the
decision of a Metropolitan Magistrate, shall explain to the appellant or the applicant the
provision for free legal assistance granted under the scheme and inform him that free
legal assistance would be granted to him, if he is found eligible. If, after having explained
to the appellant or applicant the above provisions, he states that his income does not
exceed Rs.2,500 per annum, he shall be asked if he desires to submit an application in
Form ' B ' (given below) and if such application is submitted by him, the same shall be
forwarded to the Registrar, City Sessions Court, Greater Bombay, in duplicate along with
the petition of appeal or revision application.
(iii) Every Officer in charge of a jail, while forwarding a petition of an appeal or revision
application from a person in jail, shall endorse below the petition of appeal or revision
application that he has explained the provisions of this scheme to the appellant or
applicant.
(iv) When a petition of appeal or revision referred in subrule (i) is filed in person in the
office of the Registrar, City Sessions Court, Greater Bombay, the Registrar shall explain
to the appellant or applicant the provisions of free legal assistance granted under the
scheme and furnish to the appellant or applicant two copies of Form ' B ' (given below).
If the appellant or applicant desires to have free legal assistance under these rules, he
shall fill in and return the two copies of the Form to the Registrar within a period of two
weeks from the receipt thereof by him.
(v) On receipt of the application in duplicate under subrules (ii) or (iv) above, the
Registrar, City Sessions Court, Greater Bombay, shall forward one of the copies to the
Police Officer investigating the prosecution case to verify the truth of the statement
complaints, the copy of the application shall be forwarded to the Inspector of Police in
whose jurisdiction the offence is alleged to have been committed. The Police Officer or
Inspector of Police shall submit his report to the Registrar within a period of three weeks
from the receipt of copy of such application.
6. Authority to decide capacity of person to engage Advocate – Registrar, Sessions Court,
is authorised to certify or report whether the person applying for legal aid is poor or not.
7. Panel of Advocates for Legal Aid – (a) The appointment of the Advocate for the poor
under these rules shall be made from a panel of Advocates. The persons included in the
panel should have standing of at least five years as practising Advocates, and they should
also have some experience of criminal work. Normally, the Sessions Judge should not
make an appointment from outside the panel, but he may do so for any exceptional
reasons to be recorded in writing.
proceedings pending on the date of promulgation of these rules and to which a poor
person is a party, on application in that behalf to the Sessions Court, or the Special Court,
the Advocate engaged by him shall be recognized to be the Advocate engaged by the
Court under these rules and shall be paid the fees admissible under these Rules.
8. Constitution, terms and conditions of appointment on the panel – (1) The panel shall be
constituted every year, normally for the period, 1st January to 31st December, provided
that an Advocate shall continue in a case, for which he is engaged till its completion,
even if the case is not closed in that year.
(2) All persons included a panel shall express in writing to the Sessions Judge, Greater
Bombay, their willingness to serve on the panel and thereupon such persons shall accept
engagement in any case and appear in Court when so engaged.
(3) Any person included in the panel may tender his resignation in writing to the Sessions
Judge, Greater Bombay.
(4) Any vacancy in the panel caused by resignation or otherwise may be filled by the
Sessions Judge from the Advocates practising in the Court, but the term of the person so
appointed will expire on the 31st December succeeding the date of appointment.
(5) If any person, after having agreed to serve on a panel, neglects or refuses to accept an
engagement, he shall forthwith cease to be a member of the panel and shall be debarred
from being reappointed on the panel.
(6) If any Advocate, after accepting an engagement, neglects or refuses to discharge his
duties properly, the authority which sanctioned the engagement may remove the
Advocate and appoint another in his place. Such removal will entail the consequence
mentioned in subrule (5).
(7) Any person serving on a panel shall be eligible for reappointment, unless debarred
under subrule (5) or (6).
(8) Cases in which legal aid is sanctioned may be distributed among the members of the
panel equitably at the discretion of the Sessions Judge, Greater Bombay.
9. Fees – In Criminal cases before the Sessions Court/Special Court, the Advocates shall
be entitled to a fee of Rs. 60 per day, submit to a maximum of Rs.300 in the aggregate :
Provided that in cases of unusual importance or difficulty or in which marked industry or
ability has been displayed, Government may sanction such fees to the Advocate in
relaxation of the said maximum limit as may be deemed fit.
10. Fees in appeal or revision application – In Criminal Appeal or Revision Application
before the Court of Session, Greater Bombay, the Advocate shall be entitled to a fee of
Rs. 30 per appeal or revision application for one appellant or applicant and Rs. 12. 50
paise for each additional appellant or applicant, submit to a maximum fee of Rs. 105 in
the aggregate :
Provided that the Government, having regard to the exceptional nature and importance of
the appeal or revision application or in which marked industry or ability has been
displayed, may sanction such special fees to the Advocate in relaxation of the said
maximum limit as it may deem fit.
11. Disbursement of fees – The fee for an Advocate engaged for in the Sessions Courts
and Special Court shall be disbursed by the Session Judge, Greater Bombay, on the
succeeding rule.
12. Certificate – The certificate to be submitted to the Sessions Judge, Greater Bombay,
shall contain the following details :
(a) The number of days on which actual work is done ;
(b) The duration of work for each day ;
© The fee payable to him as per these rules, and
(d) A statement that the Advocate has not received any fees from the poor person.
13. Maintenance of accounts – The Registrar, Sessions Court, shall maintain accounts of
the Advocates' fees paid under these rules.
14. Advocate not to receive any fee from party – The Advocate whom fee is due or paid
under this scheme, shall not be entitled to, nor shall he receive, any fee from the party.
15. Saving – Notwithstanding anything contained in these rules, it shall be competent for
Government to issue from time to time any direction or instruction with a view to
implementing the scheme for legal aid to the poor, having regard to the special
circumstances of any case.
FORM A
FORM OF APPLICATION TO THE COURT OF SESSIONS/SPECIAL COURT,
GREATER BOMBAY, FOR LEGAL AID
1. Name of the Police Station filing
the charge sheet in the Court in Sessions
Case or Special Case against the
applicant.
2. Name, description and place of
residence of the applicantaccused.
3. Date of filing the charge sheet in
the Court in Sessions or Special Case
against the applicant.
4. Name of the Metropolitan
Magistrate's Court by which the applicant is
committed for trial to the Sessions Court.
5. Number of Criminal case, if
committed by the Metropolitan Magistrate.
6. Date of order for trial by the
Sessions Court.
7. Average monthly income of the
applicant.
I/We am/are thein
No.noted above. I/We am/are to be tried by the Sessions Court.
Special Court.
My/our average monthly income is Rs. I/We am/are not in a position to
engage an Advocate for my/or own in the Sessions Case/Special Case. I/We, therefore,
pray that Sessions Court/Special Court may be pleased to engage an Advocate for me/us
in the Sessions Case/Special Case.
Dated19 Signature of Applicant.
matter as to whether the gross average yearly income of the accused for the five
preceding calender years was not more than Rs.2,500 and whether he has no other means
of raising funds for his defence, as stated by him, and return the same to this office
immediately.
This should be treated as most urgent.
No. of 19
City Sessions Court,
Old Secretariat Building,
3rd Floor, Bombay 400 032.
Dated : Registrar,
City Sessions Court,Greater Bombay.
FORM B
FORM OF APPLICATION FOR LEGAL AID IN CRIMINAL APPEAL AND
REVISION APPLICATION IN THE CITY SESSIONS COURT, GREATER BOMBAY.
1. Name of the Metropolitan
Magistrate's Court.
2. Name of the Police Station
filing the charge sheet in the Court of
Metropolitan Magistrate.
3. Name of Criminal Case and
date of the order passed by the Metropolitan
Magistrate.
4. Name, description and place of
residence of the Appellant/Applicant.
5. Average monthly income of the
Appellant/Applicant.
Rs. I am not in a position to engage an Advocate of my own in the
aboveAppeal/Revision.
I, therefore, pray that the City Session Court, Greater Bombay, may be pleased to engage
an Advocate for me in the Appeal/Revision.
Dated this 19
Signature of Appellants/or Applicants.
Station ( C.R. No.) Bombay, with a request to submit his report in the
matter as to whether the gross average yearly income of the accused for the five
preceding calender years was not more than Rs.2,500 and whether he has no other means
of arranging funds for his defence, as stated by him, and return the same to this office
immediately.
This should be treated as most urgent.
No. of 19
City Sessions Court,
Old Secretariat Building,
3rd Floor, Bombay 400 032.
Dated : Registrar,
City Sessions Court,
Greater Bombay.
Chapter VI
General Rules as to Inquiries and Trials in all Courts precedence and expeditious
Disposal of Capital Cases.
1. (i) Sessions Judges and Magistrates should give precedence to murder cases over
all other cases and should dispose of them as expeditiously as possible.
(2)They should also keep memoranda books in Forms Nos.VI and XI prescribed
in paragraph 1 of Chapter XXX of the Criminal Manual, 1980, in accordance with
the following instructions :
(i) Form No.VI : This form is
to be kept all sessions Judges
(Including Special
Judges,Joint Sessions Judges
and Assistant Sessions Judges)
(ii) Form No.XI : This form is
to be kept by all the judicial
Magistrate (including Special
Magistrate).
3. (i) Every case, appeal, revision or any other proceeding entered in the relevant
memorandum book should, if the said appeal, revision or other proceeding has on
the day in question advanced a stage, be then and there marked with the mark
“V”. If the matter is taken up and decided a line should be drawn through the
entry.
(ii) Every case, appeal, revision or ther proceeding should be entered by the
number and year.
(iii) The object of these memoranda books is twofold:
(a) to show the presiding judge or magistrate what work is fixed for any particular
day; and
(b) to show an inspecting authority what work was done on any particular day.
(iv) Form No.VI should be kept in English. Form No.XI be kept in the regional
language unless the presiding Magistrate prefers that it should be kept in English.
(v) The presiding Officer should himself fix the adjourned date in
every case and should make a note thereof in his own hand on the daily Board as well as
in the Memoranda Book (Form XI of Chapter XXX ). before proceeding to take up the
next case.
(2)With a view to achieving uniformity in the trial of absconding accused, it is
directed that the Courts need not pass orders in respect of the accused shown as
absconding in red ink in column No.2 of the chargesheet filed by the police, since
they are not before the court. However, if such accused are traced during the
pendency of the trial of
the accused who is/are sent up to the court,the former should not be tried with the
latter, if the prosecution evidence has already commenced. In such cases and in
cases where the absconding accused is/are apprehended after the disposal of the
trial, separate proceeding should be entered on a supplementary chargesheet,
submitted by the police as per Rule 218(3) of Bombay police Manual, 1959,
volume III.
2. (1) In cases in which some of the accused are shown absconding in the charge
sheet filed by the police,they show available accused in column No.1 and
absconding accused in red ink in Column No.2 . In such cases, some courts carry
the impression that the cases of the absconding accusedare also before the Court,
while some think that they are not concerned with the case of the absconding
accused and that the police would file a separate charge sheet for them. Thus, no
uniformity is seen in the trial of the absconding accused.
Completion of partHeard cases by Magistrates
under Orders of Transfer
3. Whenever an order of transfer or an advance intimation of the transfer is received
by a Judge or Magistrate, he should endeavour to dispose of all partheard cases
before handing over charge.
Vakalatnama
4. (a) Vakalatnamas shall be filed by all pleaders, as defined in the code of criminal
procedure, appearing on behalf of any part in all classes of cases, including
appeals and revisional or miscellaneous applications,in all courts in the state of
Maharashtra, provided that no Vakalatnama shall be necessary in the cases of
i. A public prosecutor appearing on behalf of Government
ii. A pleader appointed by the Court in any case to defend persons who are too poor
to engage counsel for themselves.
iii.A pleader appearing as amicus curiae ;
iv. a pleader engaged to plead on behalf of any party by any pleader who has been
duly appointed to act as a pleader on behalf of such party.
(b) When a pleader who has filed a vakalatnama for a party wishes to withdraw
his appearance, he shall serve a written notice of his intention to do so on his
client at least seven days in advance of the case coming up for hearing before the
court. Leave of the court to withdraw appearance may also be applied for if the
client has instructed the pleader to that effect. The pleader shall file a note in
writing requesting the court for permission to withdraw appearance and shall also
file along with the Note the letter of the client instructing him to withdraw his
appearnce or a copy of the intimation given to the client as above together with
his written acknowledgment by the client . The court, if it is satisfied that no
inconvenience is likely to be caused to the court or the client, may permit , may
permit the pleader to withdraw his appearance and while permitting the pleader to
do so may also impose such terms and conditions as it may deem proper either in
public interest or in the interest of the parties.
5. Compliance with special Requirements of Special and Local Acts to be
examined.
Certain Special and Local Acts require the previous sanction of or a
complaint from the prescribed authority or some other conditions being
satisfied for giving jurisdiction for the trial of certain offences, e.g.Section
39 of the Arms Act,1959 (54 of 1959). Judges and Magistrates should
study the Special or Local Act, under which a prosecution has been
commenced and satisfy themselves, before commencing the trial, that the
prescribed previous sanction or other condition precedent for giving
jurisdiction for the trial has been given or complied with.
The following list of special provisions, which is not exhaustive, is given for ready
reference:
INDIA ACTS
(Arranged Alphabetically)
1. Section 266 of the contonments Act, 1924 (II of 1924)
2. Section 11 of the Cotton Ginning and Pressing Factories Act, 1925(XII of 1925)
3. Section 10 of the Indian Dock Labourers Act, 1934 (XIX of 1934).
4. Section 32 and 33M of the Drug and Cosmetics Act, 1940 (23 of 1940)
5. Section 7 of the Explosive Substances Act, 1908 (VI of 1908).
6. Section 105 of the Factories Act, 1948 (LXIII of 1948).
7. Section 26 and 27 of the Indian Boilers Act. 1923 (V of 1923).
8. Section 50 of Indian Electricity Act, 1910 (IX of 1910).
9. Section 28 of the Indian Emigration Act, 1922 (VII of 1922).
10.Section 68 of of the Indian Forest Act, 1927 (XVI of 1927).
11.Section 72 of Indian Post Office Act, 1898 (VI of 1898).
12.Section 16A of the Indian Press and Registration of Books Act, 1867 (XXV of
1867).
13.Section 134 of the Indian Railways Act, 1890 (IX of 1890).
14.Section 19 of the Central Excise and Salt Act, 1944 (I of 1944).
15.Section 70 of the Indian Stamp Act, 1899 (II of 1890).
16.Section 23 of the Maternity Benefit Act, 1961 (LIII of 1961).
17.Section 70 of the Presidency Town Insolvency Act, 1909 (III of 1909
).
18.Section 20 of the Prevention of Food Adultration Act, 1954 (Act 37 of 1954).
19.Section 6 of the Prevention of Corruption Act,1947 (II of 1947).
20.Section 8 of the Prevention of Seditious Meeting Act, 1911 (X of 1911).
21.Section 72 of the Standards of Weights and Measures Act, 1976 (60 of 1976)
MAHARASHTRA ACTS
(Arranged Alphabetically)
1. Section 28 of the Maharashtra Vaccination Act, 1964 (Maharashtra XXXVII of
1964)
2. Section 34 and 296 of the Maharashtra Municipal Councils , Nagar Panchayat and
Industrial Township Act, 1965
6. Question re : Remittance of deposit received by police.
(Maharashtra Act,No.XL of 1965)
In the cases under the Motor Vehicles Act, the cash deposits, received by the police or the
investigating authorities directly from the offenders in lieu of bailbonds under section
445 of the Code of Criminal Procedure, 1973 should invariably be received and deposited
in the Courts concerned along with chargesheets and credited in “C” Register under the
Head of Account “Criminal Court Deposit”.
7. Use of rubber stamps.
The use of the following rubber stamps only (and no printed or cyclostyled form in
vogue) are permitted in the Judicial Proceedings:
.....................................................................................................................
Sl. Nature of Cases Stamps
No.
.....................................................................................................................
1. Remand Applications Accused ordered to be released on bail in the sum of
Rs............. with one surety in the like amount in default remanded to
police / Jail custody till...............
2. N.C.Cases or Summary Judgement: On the plea of the accused, I
cases in which the acc consuffer ........ days/months simple/rego
used plead guilty rous imprisonment. Bail bond cancelled.
3. Surety Bond Order: The surety is accepted.
Date J.M.F.C.
.....................................................................................................................
(1) The Judicial Magistrate First Class ( and not Civil JudgecumJudicial Magistrate), at
District Headquarters and the Special Judicial Magistrates (Railways, Motor Vehicles and
Municipal or Corporation)
to use the rubber stamps for passing Judicial orders in N.C.Cases and for accepting the
sureties. In no other case they should use the rubber stamps even for putting formal
questions to the accused persons.
2. So far as the Judicial Magistrates at Taluka places are concerned, they
should not make use of the rubber stamps even to the limited extent as
stated above because the number of N.C.Cases, Summary Cases and
remand orders is very small. However, in case a Judicial Magistrate at
Taluka place wants to avail himself of this facility, he should make out a
case giving the number of institutions and disposal of N.C.Cases and
Summary Cases to the District Judge who should in turn examine the
proposal and make a suitable recommendation to the High Court for
authorizing such Magistrate or Magistrates to make use the rubber stamps.
The Magistrate are permitted to use the aforesaid rubber stamps on
condition that they exercise proper care and due attention in striking out
unnecessary words and in filling the gaps, that these rubber stamp orders
are recorded by them personally and not by therir Clerks and that they
personally strike out unnecessary words and fill in the gaps in their own
handwriting.
Framing of Charge
8.(a) (1) The correct framing of the charge is of considerable importance as it enables the
prosecution as it enables the prosecution to know precisely what facts they have to prove
and also gives notice to the accused of the case, which he has to meet. Judges and
Magistrates should devote their personal attention to this matter and see that the charges
are framed correctly and give all the necessary particulars as prescribed in section 211 to
213 and 218 to 221(1) of the Code of Criminal Procedure, 1973. The form in which the
charges should be framed is Form.No.32 in Schedule II of the Code.
2. Where an accused person is charged with a number of offences,
there should be a separate head of charge for each separate offence
alleged to have been committed by him.
3. Where several persons are tried together for different offences
committed in the course of the same transaction, there should a
separate head of charge for each of those offences.
4. Where five persons or more are charged with committing an
offence it would ordinarily be desirable to frame charges in the
alternative, both under section 34 and section 149 of the Indian
Penal Code. An alternative charge may also be framed against the
accused , who are alleged to have committed the particular act
constituting the offence.
5. In prosecution for giving false evidence under section 193,194 and
195 of the Indian Penal Code, the particular statements alleged to
be false should invariably be set out in the charge, to enable the
accused to understand fully the offence with which he stands
charged.
(b) The attention of the Courts of Sessions is invited to sub section (1) (a) of Section 228
of the Code of criminal procedure, 1973, according to which the Courts of Sessions may
frame a charge against the accused in case there is ground for presuming that the accused
has committed an offence which is not exclusively triable by the Court of Sessions and,
by order, transfer the case for trial to the Chief Judicial Magistrate, who shall try the
offence in accordance with the procedure for the trial of warrant cases instituted on a
police report.
9. Attention of the Magistrates is invited to the decision of the High Court reported in
1967 Cri.L.J. 165 (Volume 73 C.N. 42) A.I.R. 1967 Bombay 52 (V54C11) in the case
of State V. Sharad Keshav and others wherein it is held that the different ingredients of
offence should have been put to the accused and their explanation ought to have been
asked on each ingredient to make their plea of guilty a proper plea of guilty. Similarly
attention is also invited to the Supreme Court decision reported in 1966 Criminal Law
Journal 66 (Volume 72 C.N.23) A.I.R.1966 S.C.22 (V53C.6) in the case of Mahant
Kausalya Das V.State of Maharashtra wherein it is observed that the requirements of
Section 243 of Criminal Procedure Code, 1898 (corresponding Section252 of the Code of
Criminal Procedure ,1973), are mandatory in in character and a violation of these
provisions vitiates the trial and renders the conviction equally invalid and that the
requirement of the section is not a mere empty formality but is a matter of substance
intended to secure proper administration of justice.
Ascertainment of Age of Youthful Offenders
10.Attention of the Judges and Magistrates is invited to the provisions of Bombay
Children (Amendment) Act, 1975 (Mah.LIV of 1925) published in Maharashtra
Government Gazette,Part IV, dated the 8th January, 1976 . pages 456475 and
they should note that the 'child' means a boy, who has not completed the age of
sixteen years, or a girl who has not completed the age of eighteen years.
It is necessary to take special care to see that young persons, who are charged with an
offence or against whom chapter proceeding are instituted, are not deprived of the benefit
of the Bombay Children Act,LXXI of 1948, the Borstal Schools Acts,XVIII of 1929, the
Probation of Offenders Act, 1958. It is highly undesirable that young offenders or parties
should be made to associate with confirmed criminals. If the accused is less than 16 years
of age in case of boy and less than 18 years of age in case of girl, he/she cannot be
committed to the Sessions Court for trial, but he/she will have to be tried by Juvenile
court as provided in the Bombay Children Act, 1948. All Courts shou8ld, whenever a
youthful offender or a party is produced before them, take steps to ascertains his age. If
the age given by the police does not appear to be correct from the appearance of the
offender or party, and if the police cannot produce satisfactory evidence regarding his
age, the court should consider the desirablity of sending the Offender or party to the
Medical Officer for the verificationof his age before proceeding with the case.
11. The question of the age of an accused persons is frequently of importance in other
cases also. Mercy petition are often presented on the ground of youthfulness of the
condemned prisoners. At the time of the examination of accused, the Sessions Judge or
Magistrate should therefore specifically ask such accused person his or her age for the
purpose of recording it. If the Sessions Judge or Magistrate suspects that the age stated by
the accused, having regard to his or her general appearances or some other reason, has
not been correctly stated, then the Sessions Judge or Magistrate should make a note of his
estimate. The Court may also, when it so deems fit or proper, order a medical
examination of the accused for the purpose of ascertaining his correct age. If any
documentry evidence on the point of age is readily available, the prosecution may be
asked to produce it.
Permission to accused to sit
12. The accused person should be informed by the court at the beginning of every trial
that he may sit, if he desires to do so, and chairs or benches should, whenever available,
be provided for this purpose. The accused must, however, stand up, whenever he is
addressed by the Court.
Open and inCamera hearing
13. (1) Attention of all the Judges and Magistrates is invited to Section 327 of the Code
of Criminal Procedure,1973, according to which the public generally may have access to
the Criminal Court, i.e. Place wherein sitting is held for the purposes of inquiring into or
trying any offence, so far as the same can conventiently contain them. If the Court thinks
it fit, it may order at any stage of inquiring into, or trial of, any particular case that the
public generally, or any particular person shall not have access to, or be or remain in, the
court room or Building.
(2) In cases relating to sexual offences, the court should, while keeping in view the
principle of administering justice openly, consider the advisability of excluding persons
not connected with case from the court room during the trial and in particular, when
evidence to be given pertains to indecent details.
(3) Since the cases of kidnapping and abduction are of a touchy and emotional nature.
The court should, wherever possible, make liberal use of its powers as contained in the
proviso to Section 327 of the Code of Criminal Procedure, 1973 and hold its sitting for
the trial of such cases in camera so as to facilitate the concourse of justice.
Oaths and Affirmations
14. Oaths and affirmation to be made by a witness or interpreter under Section 4 of the
Oaths Act, 1969 (Act XLIV of 1969), shall as required by Section 6(2) of that Act, be
administered by the Court itself.
The following forms of oaths and affirmations are prescribed under Section 6 of the oaths
Act, 1969 :
FORM NO.1(Witnesses)
I do Swear in the name of God / Solemnly affirm, that what I shall state shall be the truth,
the whole truth and nothing but the truth.
FORM NO.3(Interpreters)
I do Swear in the name of God / Solemnly affirm, that I will well and truly interpret and
explaining all questions put to and evidence given by witnesses and translate correctly
and accurately all document gvien to me for translation.
FORM NO.4(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 this affidavit are true.
Form of Deposition
The following form of deposition should be used by all Courts in recording the evidence
of witnesses. It is not enough to say that, a “witness depoes as the last did.” “The
deposition of each witness must be taken down separately. And every deposition should
be commenced on a separate page, or half page . :
Form of Deposition to be used by all Courts.
I have made Oath (or solemn affirmation as the case may be) state My name
is................................ my father's name is ..........................(or in the case of married
woman; my husband's name is)..................... My surname is......................My age
is.........................I am by occupation a .............. and I reside in the village
of................Taluka...........and District..........
N.B. If the witness cannot tell his or her age, the presiding Officer should state how old
he or she appears to be.
(If the witness is a European or a Christian with a European name, his full name will be
entered and dthe part as to his father's name will be left blank.)
Examinationinchief
I know accused,etc., (or as the case may be)
Crossexamined by the accused
I etc., (or as the case may be)
Reexamined
I etc., (or as the case may be)
To the Court ,
I etc., (or as the case may be)
Dated this ............... day of...............
(If the accused declines to crossexamine, it should be so stated.)
Recording of Evidence
16. Attention of the presiding Officers is invited to the provisions of Section 296 of the
Code of Criminal Procedure,1973, empowering the courts to order any evidence of
formal character to be given by affidavit instead of by oral evidence,subject to the
conditions contained in the said section.
17 (1) All Judges and Magistrates shall, in the examination of complaints, witness and
accused persons, record, in each deposition, statement or defence, the following
particulars which are indispensably necessary for the further indetification of the parties
examined, viz., the name of the person examined, the name of his or her father, and, if a
married woman, the name of her husband, his or her surname, his or her profession and
age and the village and district in which he or she resides.
(2) The particulars of the village, caste or sub caste of the person concerned should,
however, not be mentioned even if the person concerned wishes to make such a mention,
unless such reference is necessary for the purposes of administering of the oath, or for
determining the law by which the person concerned is governed or for determining any of
the issues or points involved in the proceeding.
18. (1) Subject to the statutory alternatives in the matter of recording evidence as
contained in Section 275 and 276 of the Code of Criminal Procedure, 1973, as far as
possible, the Sessions Judges and Judicial Magistrates should record memorandum of
evidence in English in all cases and proceedings.
(2) Attention of the Courts of Sessions is invited to the provision of subsection (2) of
Section 276 of the Code of Criminal Procedure,1973, according to which the evidence of
each witness shall be taken down by the Courts of Sessions in the form of question and
answer,but the Presiding Judge may, in his discretion. Take down or cause to be taken
down the whole or any part of the evidence in the form of narrative.
(3) While the Sessions Judges and Magistrates may only make a memorandum of the
substance of the deposition of each witness, they should take care to see that all answers
given by him are recorded in the regional language, provided of course that they are
relevant and admissible in evidence. They should compare the memorandum of substance
of the deposition made by them with the deposition recorded in the regional language
when it is read out in open court and see that none of the statements contained in the
memorandum are omitted from the record of the deposition made in the regional
language.
(4) The memorandum should be made and the deposition should be recorded , so as to
leave a quarter margin on each margin on each page so as to facilitate bindings of the
record.
19. The deposition in the regional language and the memorandum of the substance
thereof taken down by the Sessions Judge or Magistrate, should bear the same exhibit
number. There should not be a separate a separate series of exhibits for depositions; all
the exhibits; including depositions should be made in one series.
20. The Presiding Officer should make a note about the demeanour of a witness in the
deposition recorded by him when such demeanour is noteworthy and is likely to affect his
estimate of the value of the evidence given by the witness.
21. It is importnt that the whole of the evidence given by each witness should appear in
one place, and should not be scattered at intervals through the record. Therefore, when a
witness is, for any reason , recalled and further examined after the close of his original
deposition, such further examination should appear as a continuation of the original
deposition.
22. When recording the evidence of a witness with reference to a map or plan, care
should be taken to record the evidence in such a way that the places mentioned by the
witness are esily identifiable on the map or plan.
23. It is desirable in juddicial proceedings to prevent, as much as possible doubt as to the
identiy of the person reffered to therein. It frequently happens that the same individual is
known by more names than one. Thus sometimes only the surname, sometimes only the
name of the caste, or occupation or the village of the individual is mentioned or he is
spoken of by a nickname, such a Bapu Saheb, Nana Saheb or Bahau Saheb. Such
variations in description require explaination to render them intelligible to an appellate
Court. A court of first instance should, therefore, take care not only to ascertain, but to
make clear by evidence duly recorded, the identity of any individual who is so reffered to
under varying appellations and if such an individual is an accused person,his name and
serial number according to the chargesheet should be cited in any passage in which he is
otherwise designated.
Rules for production, use and recording of the
Tape Record Evidence in Court.
24. The Honourable the Chief Justice and Judges, with the previous approval of the
Governer under Article 227 of the Constitution of Indian, are pleased to make the
following rules regarding recording of the taperecord evidence in Court :
(1) These Rules may be called the Rules for the Production, Use and
Recording of the TapeRecord Evidence in Courts.
(2)These Rules came into force with effect from 1st August, 1978.
(3) The party producing the taperecorded evidence shall also produce the transcript of
the tape record along with the tape.
(4) The Court or its authorised officer who is to accept the tape should accept only such
tapes as are under the seal of the party producing them.
(5) Court or such officer shall hear the tape record in order to verify whether the
transcript produced alongwith the tape is correct or not
and endorse such verification on the transcript record under his signature with date.
(6) The tape shall be kept in safe custody in a cover under the seal of the court. In case
the tape is replayed or the seal is broken for any reason, the tape shall be resealed.
(7) The notice of production of the tape together with the transcript shall be served on the
other side through the court.
(8) Any party to the proceeding may apply to the Court to hear the taperecord.
(9) The taperecord would be played within the hearing and sight of an officer appointed
by the Court for that purpose and as far as possible in the presence of the other side or its
Advocate. The Court on receipt of application may grant the necessary permission.
However, the tape shall ordinarily not be played on 3rd or 4th occasion, unless the Court
specifically permits hearing of the same. The Court while granting such permission
should bear in mind that repeated use and play of the tape may affect the tape and its
audibility. The Court may also permit any party to record the voice on the tape, produced
in Court, on another tape.
(10) Every Court shall maintain a record showing as to how, when and why the seal of
the tape record has been resealed. Such record shall be kept in the proceedings alongwith
the tape record and its transceipt.
(11) The tape in a sealed cover together with its transcript shall be given a separate
exhibit.
(12) In Criminal cases where appeal lies to the High Court and when the tape record is
not in English, either wholly or in part, the transcript must be accompanied by an agreed
or official English translation of the said transcript or part thereof, as the case may be.
(13) In case of discrepancy or doubt, the court may direct the tape to be replayed and the
transcript record shall be corrected if the Court so directs.
(14) While preparing the paperbook for appeal to the High Court the Lower Court shall
include therein the transcript in English under Rule 12, and a copy of record referred to in
Rule 10 above.
(15) The rules as to the production, preservation and destruction of the
court record should mutatis mutandis apply to the tapes.
(16) The above rules (Rules Nos.1 to 15) are framed for guidance of the Courts and they
should be followed as far as possible and subject to the provisions of the Evidence Act
and Code of Civil Procedure.
Investigating Officers
25. In all important criminal cases, and especially in cases of murder and dacoity, the
Police Officer by whom the investigation was conducted should ordinarily be examined
as witness in regard to the circumstances of the investigation.
(b) In all cases, originals of police diaries should be kept with the police Prosecutor or the
Public Prosecutor, as the case may be who should make the same available to the court
whenever required by it.
(c) In Sessions cases, the originals of only those statements and documents from the
Police investigation papers which are sought to be relied upon by the prosecution for
purposes of the trial should be produced in the court of the committal Magistrate at the
commencement of the committal proceeding and the Magistrate should forward them to
the Sessions Court alongwith the papers of the committal proceedings, and the same
should be retained in the Sessions Court until the appeal, if any, is decided or the appeal
period expires. In other cases the originals of the police investigation papers may be kept
with the public or police Prosecutor as the case may be, who should make them available
to the court whenever they required.
Examination of Public Servants
26. (1) Judges and Magistrates should take particular care to see public servants
generally, and doctors in particular, who are summoned to give evidence are examined on
the dates for which they are summoned and are relieved as soon as possible after their
examination is over.
(2) It is not desirable that Medical men in the districts should be taken away from their
dispensaries more frequently, or for a longer period than is absolutely necessary. When
calling a medical witness, the summons should state the time when he is required to be
present in the court for giving evidence. In fixing the time and date, care should be so that
Medical witnesses could be examined at the time stated in the summons.
(3) It is experienced that often times summonses issued by the Courts to Medical Officers
are served on the Medical Officers so late as to practically leave no time to the Medical
Officers concerned to make arrangements for their attendance in the Court and also to
collect and get themselves acquianted with the papers required in the case. There have
been instances where such summonses have been served on Medical Officers a few hours
before the time they were required to attend the Court. This naturally caused a great deal
of inconvenience to the Medical Officers. Often times it is not possible for them to leave
hospital without making alternative arrangements and also it is not possible for them to
lay their hands on the required papers immediately. It is also experienced that Medical
Officers who are summoned sometimes detained for long with the result that they have to
be absent from their normal duties for a pretty long time.
(4) Having regard to the nature of the duties of the Medical Officers it is necessary that
inconvenience and detention caused to the Medical Officers by such a late summoning
should be completely eliminated and that, therefore, it is directed that the summons
should be issued to the Medical Officers and also got served on them sufficiently in
advance so as to give them enough time to prepre for the journey and to make alternative
arrangements for the working of the hospitals during their absence and to make out and
study the relevant papers. It is further directed that the Medial Officers attenting Courts
should be given a specific time for attending the Courts and the cases in which they are
concerned should be taken up at the appointed time and they should not be detained
longer than is necessary for the purpose of their evidence in thecase and every effort
should be made to relieve them as soon as possible.
Evidence to be given from WitnessBox
27. All witnesses should give their evidence from the witness box. A witness should
normally stand when giving evidence, but a chair should be provided in the witness box
upon which any witness may sit on receiving the permission of the presiding Judge or
Magistrate, this permission should be given on valid grounds, such as the witnesses
health or the likehood that the witnesses evidence will occupy a long time.
Footwear permitted
28. Persons attending Courts and even witnesses taking the oath should be allowed to
keep their footwear.
Proof and statements, under Section 161, of the
Code of Criminal Procedure,1973
29. (1) When a statement recorded under Section 161 of the code of Criminal
Procedure,1973 is used in the manner indicated in Section 162 of the Code, the passage
which has been specifically put to the witnesses in order to contradict him should first be
marked for identification and exhibited after it is proved.
(2) The method of proving such a statement is to question the Police Officer, who had
recorded the statement whether the passage marked is a true extract from the statement
recorded by him.
(3) When a statement recorded under section 161 of the Code is used to contradict a
witness, the specific statement put to the witness should be set out accurately in the
record of the deposition of the witness.
(4) Omissions in the statement recorded under Section 161 should, if denied by the
witness, be proved by questioning the Police Officer whether the witness had made the
statement which he says he had.
Evidence of Commission
30 (1) The attention of all Courts is invited to Sections 284(1) and 285 to 287 of the Code
of Criminal Procedure,1973, in which provision is made for taking of evidence on
commission.
As far as possible advantage should be taken of the above sections, whenever occasion
arises for taking the evidence of a Foreign Consular Officer. Courts should take all
possible steps to avoid causing unnecessary inconvenience to Foreign Consular Officers
who may be called upon to give evidence.
(2) Attention of the Judges and Magistrates is also invited to the proviso to Section 284
(1) which provides that, where the examination of the President or the VicePresident or
the Governor of a State as a witness is necessary for the end of justice, a commission
shall be issued for his examination.
(3) Attention of the Magistrates is invited to subsection(2) of Section 284 of the Code of
Criminal Procedure,1973, vesting the discretion in the Court, issuing a commission for
the examination of a witness for the prosecution, to direct the prosecution to pay a
reasonable amount to meet the expenses of the accused including the pleader's fees.
Production of Official documents by Government Servants.
31. Under Government Resolution, Home Departments, No.8996/6, dated the 28th April
1954, certain instruction have been issued for the guidance of Government servants when
they are sommoned by a Court to produce official documents. The following relevant
instructions are reproduced for the guidance of Courts :
(1) The law relating to the prodduction of unpublished record as evidence in Courts is
contained in Section 123, 124 and 162 of the Indian Evidence Act,1872 (Act I of 1872).
(2) A Government servant other than the Head of the Department who is summoned to
produce is in his custody and he is in a position to produce it. In this connection, it may
be stated that all official records are normally in the custody of the Head of the
Department and it is only under special circumstances that an official document can be
said to be in the custody of an individual Government servant. If the document is not in
the custody of the Government servant summoned, he should inform the court
accordingly. If, under any special circumstances the document is in the custody of the
Government servant summoned, he should next determine whether the documents is an
unpublished official record relating to affairs of state and privilege under Section 123
should be claimed in respect of it. If he is of the view that such privilege should be
claimed or if he is doubtful of the provision, he should refer the matter to the Head of the
Department, who will issue necessary instructions and will also furnish the affidavit in
Form No.1 in suitable cases. If the document is such that privilege under Section 123
could not be claimed but if the Government servant considers that the document is a
communication made to him in official confidence and that the public interest would
suffer by its disclosure, he should claim privilege under Section 124 in Form No.II. In
case of doubt, he should seek the advice of the Head of the Department.
(3) The Government servant who is to attend a Court as a witness with the official
document should, where permission under Section 123 has been withheld , be given an
affidavit in in Form No.I duly signed by the Head of the Department in the accompanying
form. He should produce it when he is called upon to give evidence, and should explain
that he is not at liberty to produce the documents before the Court, or to give any
evidence derived from them. He should however, take with him the papers which he has
been summoned to produce.
(4) The Government servant who is summoned to produce Official documents in respect
of which privilege under Section 124 has to be claimed, will make an affidavit in the
accompanying Form No.II. Where he is not attending the Court himself to give evidence,
he shall have it sent to the Court alongwith the documents. The person through whom the
documents are sent to Court should submit the affidavit to the Court when called upon to
produce the documents. He should take with him the documents are sent to Court should
submit the affidavit to the court when called upon to produce the documents. He should
take with him the documents which he has been called upon to produce but should not
hand them over to the Court unless the Court directs him to do so. They should not be
shown to the opposite party.
(5) The Head of the Department should abstain from entering into correspondence with
the presiding Officer of the Court concerned in regard to the ground on which the
documents have been called for. He should obey the court's orders and should appear
personally, or arrange for the appearance of another officer in the Court concerned, with
the documents and act as indicated in paragraph 2 above, and produce the necessary
affidavit if he claims privilege.
FORM OF AFFIDAVIT NO.1
IN THE COURT OF
Case No..................... of 19.................
I ............................ do hereby solemnly affirm and state as follows :
A summons bearing No. .........dated......................is issued by the Court of....................in
case no..................of ................19...............(........... v............ has been received
on ..............19 ...........requiring production in the said Court on ..........19............ of
documents stated below. I, as the Head of the Department am in control of and in charge
of its records. I have carefully considered the relevant docuements and have come to the
conclusion that they are unpublished official records, relating to affiars of State and their
disclosure will be prejudicial to the public interest for the following reasons :
List of documents summoned
I do not, therefore, give permission to any one under Section 12, of the Indian Evidence
Act, 1872, to produce the said documents or to given any evidence derived therefrom
Solemnly affirmed at.............this................day of.......19 .........
Name and designation of the
person making affidavit.
FORM OF AFFIDAVIT NO.II
IN THE COURT OF
Case No......................... of 19...............
I .......................................do hereby solemnly affirm and state as follows :
A summons bearing No................. dated .............issued by the court of ......................in
case No.........of 19............(................v.................)has been served on me on .........
19............requiring production in the said
Court on ............19 ..............of the documents stated below. I have carefully considered
them and have come to the conclusion that they contain communications made in official
confidence and I consider that the public interest would suffer by their disclosure for the
following reasons :
List of Documents summoned
I,therefore, claim privilege under Section 124 of the Indian Evidence Act, 1872, solemnly
affirmed at ...............this ............day..........19........
Signature and designation of
the person making the affidavit.
Sworn before me
Admission of certain documents directly in evidence without formal proof
32. Attention of the Magistrates and Judges is invited to Section 294 of the Code of
Criminal Procedure, 1973, according to which, the particulars of the documents filed
before the Court shall be included in a list, in the prescribed form given below, and the
prosecution or the accused, as the case may be , or the pleader for the prosecution or the
accused, if any, shall be called upon to admit or deny the genuiness of each such
documents and if the genuiness of any document is not disputed such document may be
read in evidence in any inquiry, trial or other proceedings, without proof of the signature
of the person to whom it purports to be signed which, however, the court may in its
discretion require such signature to be proved.
List of documents filed before...................Court
*Prosecution
By the *accused.
.....................................................................................................................
Sr. Particulars of Pages Whether By whom Names of Remarks
No. the docum original prepared attesting if any
ents with certified persons
dates copy whether
they are
cited as
witnesses
1 2 3 4 5 6 7
....................................................................................................................
....................................................................................................................
production, relevancy and admissibility of documents
33 (1) When the documents are sought to be produced in the Courts, the Courts
concerned should insist upon the list of such document and the production thereof being
made in chronological or some other methodical order.
(2) Similarly, the Courts concerned should determine as to whether documents sought to
be produced in the Court are relevant and admissible or not, at the time when the
documents are sought to be produced, and not at the time of the delivery of judgement.
Exhibiting of Documents
34. When a witness proves any document, the correct exhibit number should immediately
be noted (i)on the document itself and (ii) in the body of deposition against the
description of the documents so that the appellate or revisional Courts may not be
required to waste its time in tracing the document. Similarly, when another witness who
has already been examined is referred to by any witness its deposition, the exhibit
number of the deposition of such other witness should invariably be noted in the
deposition immediately after the reference to the witness.
35. When only a portion of document is admissible, a note should be made, as soon as the
document has been proved and admitted into evidence stating the part admitted into
evidence. The exclusion of the inadmissible portion of such documents should not be left
over for consideration at the time of writing judgement.
Opinion of professors of Anatomy as to the sex and the age
36. Sessions Judges and Magistrates should refer the cases with reference to questions as
to the sex and the age at death of persons suspected to have been murdered, whose bones
or skeletons are found, to the Professors of Anatomy of the following Government
Medical Colleges, for the purpose of obtaining expert evidence on those questions:
(1) The Grant Medical College, Bombay.
(2) B.J.Medical College,Pune.
(3) Government Medical College, Nagpur,
(4) Government Medical College, Aurangabad,
(5) Government Medical College, Miraj, (District Sangli).
(6) Dr.V.M.College, Solapur,
(7) Swami Ramanand Tirth Rural Medical College, Ambejogai (District Beed)
(Vide G.R.,J.D.No.1630, dated 13th March, 1917, G.Rs., H.D.No. FSL1958/84008V,
dated 29th October,1958 and FSL 1958/84008VII, dated 19th February, 1959 and 23rd
April, 1959).
Certificate under Section 13(2) of the Prevention of Food
Adulteration Act, 1954
37. Subsection (2) of Section 13 of the Prevention of Food Adulteration Act, 1954
(No.37 of 1954) entitles the accused vendor or the complainant in a prosecution under the
Act to make an application to the Court for sending part of the sample mentioned in sub
clause(i) or subclause(iii) of clause(c) of subsection (1) of Section 11 of the Director of
the Central Food Laboratory for a certificate on payment of the fee of Rs.40 per sample
prescribed by subrule (6) of Rule 4 of the Preventation of Food Adulteration Rules,
1955.
Attention of the Presiding Officers of the Courts is, therefore, invited to the provisins of
Rule 4 of the “Prevention of Food Adultration Rules, 1955.” issued by the Government of
India and published in the Gazette of India, Extraordinary, 1955, PartII, Section 3 at
Page 2039, which is as follows :
Rules 4 of the Prevention of Food Adulteration Rules, 1955
4. Analysis of food samples : (1) (a) Samples of food for analysis, under subsection (2)
of Section 13 of the Act shall be sent either through a messenger or by registered post in
a sealed packet, enclosed together with a memorandum in form I in an outer cover
addressed to the Director.
(2) The Container as well as the outer covering of packet shall be marked with a
distinguishing number.
(3) A copy of the memorandum and specimen impression of the seal used to seal the
container and the cover shall be sent separately by registered post to the Director.
(4) On receipt of the packet, it shall be opened either by the Director or by an officer
authorised in writing in that behalf by the Director, who shall record the condition of the
seal on the container.
(5) After test or analysis, the certificate thereof shall be supplied forthwith to the sender
in Form II.
(6) The fees payable in respect of such a certificate shall be Rs.40 per sample of food
analysed.
(7) Certificate issued under these rules by the Laboratory shall be signed by the Director.
Attention of the Presiding Officers of the Courts is further invited to the following
instructions and/or procedure for obtaining a certificate under Section 13(2) of the said
Act or final opinion of samples of food sent to the Director, Central Food Laboratory,
Calcutta :
(i) Samples of food for analysis should be sent to the central Food Laboratory, Calcutta,
either through a special messenger or by registered post in a sealed packet, enclosed
together with a Memorandum in Form 1 of Appendix A of Prevention of Food
Adulteration Rules.1955, in an outer cover addressed to the Directorate. The
Memorandum should be properly filed and completed. The nature of article of food stated
in Form 1 should be as on the label.
(ii) A copy of memorandum and a special specimen impression of the seal used to seal
the container and the cover should be sent to the director, Central Food Laboratory,
Calcutta separately by registered post.
(iii)The container as well as the outer covering of the packet should be marked with a
distinguishing mark required under Section 11(1)(b) of the Act.
(iv) Fees should be deposited in the treasury in the appropriate head in advance and the
treasury receipt should be enclosed with Form I.
All the Magistrates should remember that failure to observe these mandatory provisions
may render the conviction, if any bad simply for failure to observe these provisions.
Examination of Accused and written statements
38. (1) Under Section 243 (1) and Section 247 read with 243(1) of the Code of Criminal
Procedure, 1973, the accused may put in a written statement which should be filed with
the record. The written statement cannot, however, be allowed to take the place of the
examination of the accused, prescribed under subsection (i) of Section 313 of the Code
of Criminal Procedure, 1973, which is mandatory.
(2) The object of the examination of the accused under Section 313(1) of the Code of
Criminal Procedure, 1973, is to enable him to explain any circumstances appearing in the
evidence against him. The examination should strictly be limited to this object. The
examination of the accused cannot be used for the purpose of adding to the evidence
against him, and no attempt should be made to crossexamine the accused and to elicit
damaging or incriminating admissions. A general question “What do you wish to say
with regard to the evidence in the case ?” may no be regarded as sufficient compliance of
law. Every circumstance which incriminates or tends to incriminate the accused and the
material evidence against him should be brought to the notice of the accused and he he
should be asked whether he wishes to furnish any explanation in regard thereto.
(3) The accused may refuse to answer or to add to his written statement, and in that event,
the court may draw an appropriate inference under Section 313(3) of the Code of
Criminal Procedure, 1973.
(4) Attention of the Magistrates is drawn to the provision of Section 315 of the Code of
Criminal Procedure, 1973, according to which the accused shall, at the end of his
examination, be specifically asked to state in writing whether he desires to examine
himself on oath as witness without which he shall not be called as a witness and
examined. He may also be asked to state whether he wants to examine other witnesses.
Payment to Interpreters
39. Sessions Judges and District Magistrates are authorised to pay to an interpreter,
employed to interpret evidence given in a language not unserstood by the accused or the
Court, any reasonable sum for his service not exceeding *(Rs.30) per diem. Where a
pleader or an advocate is employed to interpret evidence as above, the Sessions Judges
and District Magistrates may, if they deem fit, pay to the interpreter a sum of not
exceeding Rs.10 per diem.
Sessions Judges and District Magistrates are also empowered within the limit prescribed
to sanction similar charges incurred by Magistrates subordinate to them.
Previous Conviction
40. (1) Where the Court thinks fit to award enhanced punishment to an accused by reason
of his previous convictions the said previous convictions must not only be set out in the
Charge as required by subsection (7) of Section 211 of the Code of Criminal Procedure,
1973, but must also be formally proved, if they are not admitted. The Court should follow
the procedure analogous to that laid down in Section 236 of the Code of Criminal
Procedure,1973, and suspend delivery of judgment as soon as the conclusion that the
accused is guilty of the subsequent offence charged, has been arrived at. The accused
should then be questioned as to his convictions and evidence taken in regard to the
convictions which are not admitted by him. The judgment should then be completed and
the finding and sentence recorded.
(2) In cases under the Prevention of Food Adulteration Act, 1954, it is the duty of the
Magistrate trying such cases not to give way to misplaced sentimentality but to apply law
strictly in view of the antisocial nature of the offence in Food Adulteration Cases, as it
affects the health of the people. They should, therefore, invariably insist upon the
production by the prosecutors of the past record, if any , of the accused convicted for
such offence before passing a sentence so as to rule out any possibility of very lenient
sentence being passed on the accused and should award deterrent sentences in deserving
cases.
Compounding of Offences
41. Before granting permission to compound an offence, the Court should taken into
consideration all the circumstances of the case bearing in mind that the offence is
punishable not only for the satisfaction of the injured persons but also to protect society
by deterring others from committing similar offences. The relationship between the
parties,the stage at which the composition is sought, the prevalence of crimes of the
nature sought to be compounded, or other circumstances which should be taken into
consideration.
42. Attention of the Magistrate is drawn to Section 314 of the Code of Criminal
Procedure 1973, which provides that any party to a proceeding may, as soon as may be,
after the close of evidence, address concise oral arguments, any may, before he concludes
the oral arguments, if any, submit a memorandum to the Court setting forth concisely and
under distinct headings, the arguments in support of his case and every such
memorandum shall form part of the record.
Judgments
43. (1) The arguments should be heard and judgment should be delivered as soon as
possible, after the evidence is recorded. Some Magistrates do not hear arguments
promptly and do not deliver judgments for a long time, even after the arguments are
heard. This is the undesirable effect of wiping out the impressions, gained at the trial and
during the course of arguments. There should, therefore be prompt hearing of arguments
after the recording of evidence is over and judgments should be delivered soon thereafter.
(2) While it is not necessary to lay down any hard and fast rules, Courts should avoid as
par as possible, pronouncing a judgment sentencing an accused to imprisonment at the
very close of the day's sitting or immediately before a holiday or series of holidays ,
unless, in nonbailable cases, the convict can be furnished with a copy of the judgment in
time to enable him to apply for bail before the close of the day or before the holiday or
holidays commence, or unless, in bailable cases, the Court releases the convict under
Section 389(3) of the Code of Criminal Procedure, 1973.
44. At the head of every written judgment, the names of all the accused persons shall
always be set out, together with the numbers by which they may respectively be referred
to the Court in the course of the judgment.
(2) The opening paragraph should state briefly the nature of the offence with which the
accused is charged.
(3) The next paragraph or two should state briefly the prosecution case and defense,
clearly distinguishing between what is admitted and what is not. Matters like the relative
position of places and villages and distances between them and how the parties and
witnesses are related to each other should be indicated, where such details are necessary,
for a clear understanding of the case.
(4) The points that arise for decision should then be dealt with one by one , marshalling
the evidence for and against considering the arguments, and giving a clear finding on
each point. Witness should not be referred to by number alone. The accused person,
where there are two or more, should ordinarily be referred to by their numbers. The
various points should be dealt with in separate paragraphs, but some points may require
more than one paragraph.
(5) Judgments should not be prolix and repetition should, as far as possible, be avoided.
(6) Attention of the Magistrate is invited to Section 354 (1) (a) of the Code of Criminal
procedure,1973, and the following Government Notification, General Administration
Department, No.OFL1066(ii)M,dated the 30th April, 1966, published in Government
Gazette. Part IVA,(Extraordinary), and they are directed that the judgments and orders in
all cases and proceedings shall be written (either in English or in Marathi in Mofussil
Courts (up to and inclusive of Session Courts)) although Marathi is determined to be the
language of the Court.
(7) Provided that Marathi documents in the proceedings shall not be translated into
English unless otherwise directed by the Court.
Notification(published in part IVA) of the Maharashtra Government Gazette Extra
ordinary, dated 30th April, 1966
GENERAL ADMINISTRATION DEPARTMENT
Sachivalaya, Bombay32, 30th April 1966
CODE OF CRIMINAL PROCEDURE,1898
No.OFL1066(ii)M. In exercise of the powers conferred by Section 598 of the Code of
Criminal Procedure, 1898 (V of 1898) in its application to the State of Maharashtra and
in supersession of all previous notifications issued it this behalf, the Government of
Maharashtra hereby, with effect from the 1st day of May,1966, determines Marathi to be
the language of all Criminal Courts in the State (other than the High Court and Criminal
Courts in Greater Bombay) except for the following purposes, namely :
1. Charge.
2. Writs,warrants, summonses, notices and other processes which are required to be
sent for service of execution to other Stats, and correspondence concerned
therewith.
3. Post mortem notes and evidence of medical expert witnesses.
4. English notes of evidence recorded by the Presiding Officer.
5. Notes of Arguments.
6. Judgments and orders.
7. Paper Books in Appeals and Revisions to the District Court and the High Court.
8. Proceedings (both judicial and administrative) that are required to be submitted to
the High Court.
9. Periodical returns and statements to the High Court or Statistical bureau.
10.All account books and returns and statements pertaining to accounts, budget
estimates and correspondence pertaining to service matters.
11.Notification to be published in the Offical Gazette.
12.Department examinations.
13.Matters relating to departmental enquiries including reports and correspondence
thereon with the High Court and Government.
Provided that, English may also be the language for the purposes of
(a) Roznama;
(b) Jantries,
(bb) Complaints and application.
© Memoranda of appeals.
(g) Administratative orders.
(e) Correspondence with the High Court and Government.
(f) Service Books, travelling allowance bills, pay bills and other bills.
CORRECTION SLIP TO THE CRIMINAL MANUAL,1980.
No.16
In view of the amendement to Government Notification, General Administraton
Department No. OFL. 1066(ii)M, dated the 30th April 1966, vide Government
Notification, General Administration Department, No.OFL.1088/CR7/XXB,dated the
24th January 1989, published in the Maharashtra Government Gazette,part IVA,dated the
18th May 1989, the Honourable the Chief Justice and Judges are pleased to direct that the
following amendements be made in Criminal Manual,1980,VolumeI :
In subpara (6) of paragraph 45 of Chapter VI of the Criminal Manual, 1980, substitute
the words “eigher in English or in Marathi In Mofussil Courts (upto and inclusive of
Sessions Courts)” for the words “only in English:.
II
In Government Notification General Administration Department, No.OFL.1066(ii)
M,dated 30th April 1966, appearing on Page 114 below subpara (6) of paragraph 45 of
Chapter VI of the Criminal Manual,1980, delete entry at serial No.6 and add in the
provisio a new item as “(g) Judgment and Orders”.
7. Attention of the Mgistrates and Sessions Judge is invited in the Supreme Court
decision reported in Boucher Piarre Andre Vs. Superintendent, Central Jail, Tihar
(A.I.R. 1975 S.C.164) and to the following observations of the High Court in
Narayanan Nambeesan Vs. State of Maharashtra (76 B.I.R. 690) :
“ ..............................The petitioners are entitled under section 428 of the Code of
Criminal Procedure, 1973, to the setoff of the period of preconviction detention
undergone by them, against the term of imprisonment imposed upon them on their
conviction. The State and the Jail authorities concerned should, therefore, immediately
give them the said benefit of set off.................. as a matter of healthy practice, the courts
conviction detention that the accused may have undergone, for the purpose of enabling
the authorities concerned to give effect to the provisions of Section 428 without delay
(pages 702703).
46.Whenever as enhanced sentence is passed on account of the previous conviction
of the accused, the Court shall set Forth in its Judgment each of the previous
convictions proved against the accused or admitted by him, specifying the date of
the conviction the section under which it was made, and the sentence imposed.
47.In all cases in which sentences of exceptional security or unusual leniency are
passed, or in which varying degrees of punishment are awarded to different
persons convicted of the same offence in one trial, the judgment should contain
the reasons which guided the Court in the determinations of the punishment.
48.(1) The Judgment should contain clear orders as to the disposal of property
produced in the case.
2. When a criminal Court is, under the provisions of sections 452, 457 or 458
of the Code of Criminal Procedure,1973 required to pass an order in regard
to the disposal of a counterfeit coin, the order should direct that the
counterfeit coin be forwarded to the Treasury Officer.
1. Judgment should be tempareately worded.
2. If a Judge or Magistrate finds it necessary to criticise the conduct of an
ofical of another department in a Judgment, the criticism must be worded
with utmost care having regard to the fact that in many cases the official
has had no opportunity to refute the criticism or explain the action
criticised. Personal imputations should not be made. A copy of the
Judgment should be supplied to the official, superior to the official
criticised.
3. Instances of abuse of authority or misconduct by the Police coming to the
notice of a Presiding Officer should be reported to the District Magistrate
by supplying him with a copy of the Judgment or otherwise, as may be
convenient. When such a report is made by a Sessions Judge, the District
Magistrate should report to the Sessions Judge the action taken. If the
Sessions Judge is not satisfied with the action taken, he may refer the
matter to the Registrar of the High Court.
50.The Criminal Courts, at the time of pronouncing, the judgment of conviction in
all criminal cases arising out of road accidents wherein the trial has ended in the
conviction of the accused, should draw the attention of the victim of the accident,
or his heir to the fact that he has a right to compensation and that the remedy is
available to him before the concerned Motor Accident Claims Tribunal.
51.In cases under the Protection of Civil Rights Act,1955, the Magistrates should
supply, free of charge, a copy of each of the Judgments to the Director, Social
Welfare, Maharashtra State, Pune.
Citation of Cases
52.All references in Judgments to Rullings of superior Courts should be cited both
by the names of the parties as well as by the number of the volume and the page
of the Report, e.g., Narayanan Nambeesan Vs. State of Maharashtra (76 Bom.L.R.
690)
Paragraphs to be numbered
53.The paragraphs in every Judgment, deposition, report or other paper containing
more than two paragraphs should be numbered. The numbers of the paragraps in
the Judge`s or Magisrate`s English memoranum of evidence should be the same as
those in the regional language deposition.
Reasons for less than Minimum Punishment
Sentence
55.(A) Attention of all the Courts in invited to Sections 235(2) and 248(2) of the
Code of Criminal Procedure,1973, according to which the courts shall hear the
accused on the question of sentence, before passing it on him, according ot law.
According to the decision of the Supreme Court in A. I. R. 1976, S. C. 2386 ( Santa
Singh Vs. State of Punjab), noncompliance with this provision exfacie vitiates the order
as it causes to the accused inherent and implicit prejudice, because of the infraction of the
rules of natural justice according to which the accuesed is completely deprived of an
opportunity ot represent ot the Court which manifestly results in a serious failure of
justice.
In this behalf, attention of the Magistrates and Sessions Judges is further invited to the
following decisions of the Supreme Court:
i. (A.I.R.1977 S.C. 949) Shiv Mohan Sing Vs The
State (Delhi Adminisrtaiion.)
ii. (A.I.R.1977 S.C.1066)Narpal Singh and others Vs.
State of Haryana.
iii.(A.I.R.1977 S.C.1579)Dagdu and others Vs. State of
Maharashtra.
iv. (A.I.R.1977 S.C. 1747) Tarlok Singh Vs. State of
Punjab.
(B)(1) The discretion granted to the Courts as to the amount and kind of punishment is
extermely wide and Courts should exercise their discretion after a careful considerateion
of all the facts and circumstances of the case.
(2)Short sentences of imprisonment are seldom suitable. They do not act as a deterrent
and the period is not long enough for thereformatory influences to workor for the
offender`s learning any useful trade or occupation. They are also likely to cause harm by
bringing first or casual offenders into contact with habitual offenders. Such sentences
may, however, serve a useful purpose in the case of offeences agains taxation laws, Food
Adulteration Act and other law enacted to promote social welfare.
3. Cases, in which injuries have beer caused with axes, spears or other deadly
weapons, should not, in the absence of special circumstances, be dealt with
leriently.
4. The existence of previous convictions is not by itself a proper ground for
passing a heavy sentence for a petty offence. The Court should consider
the lapse of time after the expiry of the last sentence and pass a heavy
sentence, only if it comes to the conclusion that the accused is a habitual
criminal.
5. Attention of the Magistrates and Judges is invited to the mandatory
provisions of section 361 of the Code of Criminal Procedure,1973,
according to which the Court shall record in its Judgement the special
reasons for not having dealt with the accused person under the proisions of
the Probation of Offenders Act,1958 or The Bombay Children Act,1948,
or any other law for the time being in force for the treatment, training or
rehabiitation of the youthful offenders, in fit cases in which the Courts
could have dealt with them accordingly with a view too give them the
benefit of the said provisions.
The Probation of Offenders Act,1958 provides under section 3 for the release of
offenders after admonition or on probation of good conduct and also for supervision by th
Child Welfare officer (Probation). Under section 4 of this Act, an order for the release of
an offender on his executing a bond for maintaining good behaviour, may be made, when
he is convicted of any offence not punishable with death or imprisonment for life.
The Bombay Borstal Schools Act,1929 provides for the detention in the Borstal School of
a young offender, in the case of a boy whose age is not less than 16 years or in the case of
a girl whose age is not less than 18 years and in both cases not more than 21 years of age.
All these provisions should be availed of, particularly in the case of first offenders or if
the offender is a young person. At a very early stage of the trial, the Court should
consider whether the case is one, iin which these provisions may suitably be used. If the
Court considers that having regard to the age of the offender, the nature of the offence
and the part played by him, the offender is likely to be given the benefit oth these
provisions, it should cause inquiries to be made through the Child WelfareOfficer
(Probation) or otherwise and obtain fulll informatin regardin th offender`s age,
vcharacter, antecedents, physical and mental conditions, the conditions in which he lives
and the circumstanes in which he came to commit the offence. After receiveing this
information, the Court should decide as to which provision can appropriately be used in
the case.
6. If the Court does not gibve a young offender the benefit of any of the abaove
provision, it should direct that he should undergo his sentence in the Juvenile
Section of the Jail.
Fines
56.The amount of fine should be fixed after consideration of the pecuniary circumstances
of the offender and the character and magnitude of the offence; unless otherwise provided
by the law, fines for amounts which are not likely to be realised should not ordinarily be
imposed.
57.The provisions of section65, Indian Penal Code, are overlooked by many Judges
and Magistrates, and accused persons are awarded terms of imprisonment in
default of payment of fine in excess of the maximum limit prescribed. The
attention of all juges and Magistrates is, therefore, drawn to the provisions of
section 65 Indian Penal Code. They will bear these provisions in mind when
awarding terms of imprisonment in default of payment of fine.
58.Payments under section 357 or under section 359 of the Code of Criminal
Procedure,1973 should not ordinarily be made unless the period allowed for
presenting an appeal has elapsed or, if an appeal has been filed, after the decision
of the appeal.
59.The Courts should adopt the following procedure for the payments of amounts of
grantsinaid to be paid to the local bodies from out of the amount of fines realied
in Criminal cases under certain acts :
As soon as the payment order to respect of the instalments of thegrantsinaid is received
the Accountant General and it is encashed and the amount is distributed in cash to the
Judicial Magistrates at the District Headquarters, and by the Treasury or Bank drafts at
Taluka places, with directions specifying the amounts to be distributed to the local
bodies, the Mgistrates should issue intimation to the concerned local bodies to arrange to
receive the amount payble to them. If the local bodies, i.e. Gram Panchayats find that the
expenditure involved in attending the Magistrates Courts for the receipt of the amounts of
the grantsinaid is more than the amount to be received by them, or if the payment is
requested by money orders, the Judicial Magistrate should remit the amount by money
orders at the cost of the local bodies and forward to the District and Sessions Courts the
receipts obtained by them from the local bodies, for further necessary action.
60.In exercise of the powers conferred by subaction (2) of section 421 of the Code
of Criminal Procedure,1973, (II of 1974) and of all other powers enabling it in this
behal, and in supersession of all rules and orders made in this behalf and in force
in the State of Maharashtra or any part thereof, the Government of Maharashtra
hereby makes the following rules to regulat the manner in which warrants for levy
of fine issued under clause (a) of subsection(1) of the said section 421 are to be
executed and for the summary determinations of any claims made by any person
other than the offender in respect of any property attached in execution of such
warrant, namely :
1. These fules may be called the “Criminal Procedure Code (Execution of
warrants for Levy of Fine and Determination of Claims to Property
Attached) Maharashtra Rules,1977”,
2. In these rules, unless the context otherwise requires :
(a) “Code” means the code of Criminal Procedure,1973, (II of 1974);
(b) “Section” means a section of the Code;
© Words and expressions used in the Code but not defined in these, rules shall have the
meanings respectively assigned to them in the Code.
3. A warrant for the levy of line issued under clause (a) of subsection (I) of section
421 shall be in Form No.43 in the Second Schedule to the Code and shall be
directed to a Police Officer for execution.
4. The Court issuing the warrant shall specify a time for the sale of attached
moveable property and for the return of the warrant. The time specified for the
sale shall not be less than two months from the date of issued of the warrant.
5. (1) The attachment of the moveable propety bellonging to the offender shall be
made by seizure:
Provided that, where in addition to or in lieu of seizure, the Police Officer considers that
either or both of the methods referred to in clauses (b) and © of subsection (3) of Section
83 should be adopted, he shall obtain an order to that effect fro the Court issuing the
warrant.
Provided further that, where the property to be attached in a debt or is in the custody of a
third party, the Police Officer shall invariably adopt either or both of the methods referred
to in clauses (b) and © of subsection (3) of section 83.
2. Where the method referred to in clause (b) of subsection(3) of section 83
in adopted and a Receiver is appointed, the Court may confer on the
Receiver all or any of the powers which may be conferred on a Receiver
appointed by a Civil Court under order XL in the first schedule to the
Code of Civil Procedure, 1908 (V of 1908) and his duties and liabilities
shall be the same as the duties and liabilities of a Receiver to appointed.
6. Where the property to be attached consists of the share or interest, of the offender
in movable property belonging to him and another as coowners, the attachment
shall be made after obtaining an order to that effct from the Court is uing the
warrant, by notice to the offender prohibiting him from transferring the share or
interest or charging it in any way.
7. Before making the attachment, the Police Officer shall deliver or tender a copy of
the warrant to the ofender or, in his absence, to any adult member of his family. If
the offender is in jail, a copy of the warrant shall be sent to the offencer through
the Jailor. If a copy cannot be so delivered or tendered the Police Officer shall
affix a copy of the warrant a some conspiciousplace wher the property to be
attached is found. If the property is situated in a village, the fact of attachment
shall be proclaimed by beat of drum. After making the attachment, the Police
Officer shall, in like manner, deliver, tender or affix, as the case may be, an
inventory of the property attached.
1. If no claim is preferred to any property attached, within one month from
the date of attachment, by any person other than the offender, the Police
Officer executing the warrantshall have power to sell, within the time
specified in the warant and without previous reference to the Court issuing
the warrant, the property attached or suca portion thereof as may be
suficient to satisfy the amount to be levied:
Provided that, if the property attached consists of live stock or is subject to speedy or
natural decay, or if in the interest of the owner the Court issuing the warrant orders its
immediate sale, the Plice Officer may sell it at once; but the proceeds of the sale shall not
be appropriated towards the fine until expiration of one month from the date of
attachment and until any claim preferred under rule 9 has been disposed of:
Provided further that, where any property is attached under rule, 6 it shall not be sold
without obtaining an order to that effect from the court issuing thw warrant. Where two
or more persons of whom one is a coowner, respectively offer the same sum for such
property, it shall be deemed to be the bid of the coowner.
2. Sales of attached property shall ordinarily be effected by auction and on
fixed days, preferably on bazar days, at the Tah ildar's office or any
Magistrate's court, during the hours of public business. In Greater
Bombay, such sales shall be effected by the Government auctioneers.
9. (1) If any claim is preferred to any property attached under rule 5 or 6 within one
month from the date of such attachment by any person other than the offender, on
the ground that the claimant has a share or interest in such property and that such
share or interest is not liable to atachment, the claim shall be inquired into and
disposed of, as provided in rules 10 to 13 (both inclusive) and the Police Officer
shall be directed to stay the sale of the property until further orders.
2. Any claim preferred under subrule(1) in time, may, in the event of death of the
claimant, be continued by his legal representative, if such representative applies
for such continuance to the Court in which such claim is preferred within a period
of thirty days from the date of death of the claimant.
10.Claims may be preferred under rule 9 in the Court by which the warrant is issued,
or if the claim relates to property attached under a warrant endorsed by the
District Magisrate under section 422, in the Court of such Magistrate.
11.(1) Every claim not exceeing in amount of Rs.1,000 shall be enquired into and
disposed of by the Court in which it is preferred.
Provided that, if such claim is prefered before a Sessions Judge, Additional Sessions
Judge or Assistant Sessions Judge, he may transfer it for enquiry and disposal to any
Judicial Magistrate of the First class and, if preferred before Chief Metropolitan
Magistrate or Additional Chief Metropolitan Magisrate he may transfer it for enquiry and
disposal to any Metropolitar Magistrate. If such claim is preferred before a District
Magisrate, he may transfer it for enquiry and disposal to any Executive Magistrate.
2. All exceeding an amount of Rs.1,000 shall be referred to a Civil Court of
competent Jurisdiction for enquiry and decision.
3. (a) Before any claim is enquired into under subrule(1), the Court may in
its discertion, require the claimant to deposit in Court a sum of money not
exceeding ten per cent of the value of the property attached or rupees ten,
whichever is greater.
(b) If the claimant fails to deposit the sum so required, the Court may reject the claim.
© If the claim is found by the Court to be vexatious or frivolous, the Court shall order the
deposit amount to be forfettied to the State Government.
(d) If the deposit is not so forfettied it shall be returned toa the claimant as soon as may
be practicable, after the Court has recorded its decision under rule 13.
(12)Notice of every claim preferred under rule 9 shall be served on the offender or, in his
absence, on any adult member of his family. If acceptance of such notice be refused,
notice may be dispensed with or may be affixed to the residence of the offender or
member of his family.
13.(1) The enquiry into any claim shall be summary.
2. An adult member of the offenders family, or such other person at the Court
may in its discretion permit, may adduce evidence on behalf of the
offender at with enquiry, which may be relevant to the claim preferred.
3. After the enquiry, the Court shall record its decision on the claims with the
reasons therefor. The decision shll be communicated forthwith to the
Police Officer executing the warrant, who shall dispose of the property in
accaordance with such decision.
14.Any person, whose claim has been disallowed, in whole or part, by a decision
under rule 13, may, within a period of one year from the date of such decision,
institute a suit to establish any right which the claims in respect of the property in
dispute, but subject to the result of such suit, if any, the decision shall be final and
conclusive.
15.Where any property attached under rule 6 is sold, the Court issuing the warrant
may make an order vesting such property in the purchaser: and such property shall
vest accordingly.
16.The Police Officer executing the warrant shall, as soon as possible after the sale,
procedure the sale proceeds before the Court issuing thw warrant, or, if the
property was sold under a warrant endorsed by a District Magistrate's under
section 422, before the Court of Such Magistrate.
17.The Police Officer empowered under these rules to execute a warrant shall not be
inferior in rank to a subInspector or Head Constable, when the estimated value of
the property to be attached exceeds Rs.100 (Government of Maharashtra
Notification, Law and Judiciary Department, No.CRM 1066/3293 (212)/X. Dated
the 5th February 1977, published in Maharashtra Government Gazette, (Special
Part IVA, dated the 5th February 1977.)
ii. The warrant of commitment shall indicate the period of detention, if any,
undergone by the accused during the investigation, inquiry or trial
andbefore the date of his conviction in the case for the purpose of giving
the benefit of the period of setoff to the accused against the term of
impriosonment imposed on him and showing the liabiliry of the accused to
undergo imprisonment restricted to the reminder, if any, thereof, under
section 428 of the Code of Criminal Procedure,1973.
The information in the folowing orm should also be sent to the Appellate Court by the
trial Court for the purpose of section 428. :
1. Serial No.
2. Police Station..........Crime No.
3. Nature of offence.
4. Name of the accused.
5. Date of arrest.
6. Period of detention of police custody.
7. Period of detention in Magisterial custody.
8. Criminal Case Number and the date of Chargesheet.
9. Remarks.
10.Whether the accused is in jail or on bail.
11.If on bail, when released on bail.
The information about the exact period during which the concerned accused was in
custody should be submitted to the Sessions Court.
© The Court shall also endorse on the back of the warrant the following particulars :
I. (i) Age of convict.
ii. His place of residence.
iii.His plea.
iv. The name and crime number of the Railway Police Station in all cases sent
up by the Railway Police.
v. The Magisrate or the Judge before signing the Warrant, should see that
complete order and recommendations, if any, are incorporated in the
warrant. Inclusion of the operative order cannnot give the exact picture of
the orders passed in the Judgement.
ii. If at the trial any previous conviction has been established, the following
particulars shall also be given :
i. The offence of which the convict was previously convicted.
ii. Sentence passed upon him.
iii.Date of said sentence.
iv. Name and designation of the trying authority.
III.If the Court has decided upon the classification of the convict as habitual or non
habitual 'or' Class I or 'Class II vide paragraph 66, particulars in regard to the
classification made by it shall be given.
IV.The Police in the State (Except in Greater Bombay) should forwarded a copy of
their form P.M. 30A with the accused. This form should be attached to the
warrant of commitment on conviction.
(d) The above particulars ahll be written in the same language in which the warrant itself
is written.
(e) It shall be the responsibility of the Clerk of the Court in the Sesions Court and of the
Senior Clerk (or where there are more Senior Clerks than one, of the Senior Clerk
appointed in this behalf by the Presiding Magistrate) in the Magistrate's Court, to see that
the warrant of commitment is drawn up properly, correctly and in conformity with the
order passed by the Court. When there is no Senior Clerk attached to a Magistrate's
Court, the Presiding Magistrate may appoint any Junior Clerk whom he considers to be
suitable to do this work, and the Junior Clerk to appointed shall be responsible for
drawing up the warrant of commitment properly, correctly and in conformity with the
order passed by the Court.
(f) Before signing the warrant of commitment, the Judge or the Magisrate concerned
should satisfy himself that the warrant is in conformity with order passed and that all
material details are included herein.
62.(1) In order to facilitate the proceedings of the Prisons Advisory Committees, an
additional typed copy of the Judgment of Sessions Court should be attached to the
warrant of commitment in every case in which a sentence of five years or over is
passed.
2. Even in cases, where a leser sentence has been passed, the Criminal Court
concerned should supply a copy of the Judgment, free of cost, whenever a
request in that behalf is made by the Superintendent of Jail on the ground
that the same is necessary to facilitate the proceedings of the Prison
Advisory Committee.
Typed Records
63.Judges and Magisrates may use a typewriter, instead of a pen, for the purpose of
recording Judgments, depositions and memoranda of evidence; but every sheet of
any judgment, deposition or memorandum so recorded must be initialled or
signed by the Judge or Magisrate recording it.
Arrangement of the Record in Files
64.(1) The record of every case shall be kept in four parts.
(2) Part I, which shall be the English record of the proceedings shall contain (1) the
Roznama or the record of the proceedings, (2) the notes of evidence and the statements of
the accused persons recorded by the Judge or Magistrate, (3) all documents which have
been exhibited and if they are not English, translation of such documents where they have
been made, (4) the Judgment and the final order, including the order with regard to the
disposal of property, and (5) the warrant of commitment, if any, issued to the jailor.
3. Part 2 of the record shall contain depositions of witnesses in the regional
language, the confessions and statements of accused persons in the
regional language and all documents, which are in the regional language
and which have been exhibited.
4. Part 3 shall contain copies of statements recorded by the Police and all
documents referred to in section 173 of the Code of Criminal
Procedure,1973 which have not been exhibited, and the report of the Police
Officer submmitted after investigation directed by a Magisrate under
section 202 of the Code of Criminal Procedure,1973.
5. Part 4 shall contain miscellanous papers, which have not been exhibited,
and which are not included in parts 1 to 3.
6. All papers which are exhibited shall be filed serially in each part of the
record.
7. Every paper which is produced before a Court or is exhibited, shall be
marked in red ink A,B,C or D according to the period for which it is
required to be preserved as specified in Paragraph 17 in Chapter XX.
8. Before transmitting that record to the District and Sessions Court Record Room,
the Clerk in charge of such work shall verify and make an endorsement
mentioning that the documents are properly classified and kept in the appropriate
files 'A', 'B', 'C' and 'D'
65.With a view to ensuring uniformity in respect of filing of the various reports
received in the Criminal Courts under various sections of the Code of Criminal
Procedure,1973 while a case is under invistigation, it is directed as follows :
A seperate file should be maintained for each category of reports. The reports should be
filed in each file according to the dates on which they are received. The envelopes, in
which the First Information Reports are received, shall be filed along with the reports.
After a case is instituted, all such papers and reports received during the investigation
stage, as related to the particular case, should be taken out of the respective files and kept
with the received of the case and First filed with the Miscellaneous Police papers relating
to that case.
Except the reports filed with the record of the case, the other reports should be kept for
two years and destroyed thereafter.
“Classification of habitual criminals and of undertrial and convicted prisoners.”
66.The following prisoners shall be classified as habitual criminals :
1. Any person convicted of an offence punishable under Chapters XII, SVII
and SVIII of the Indian Penal Code, whose previous conviction or
Convictions taken in conjunction with the facts of his case, show that he is
by habit a robber, housebreaker, dacoit, thief or receiver of stolen
property or that he habitully commits extortion, cheating, forgery or is in
the habit of counterfeiting coins, urrency notes, and staps;
2. Any person convicted of an offence punishable under Chapter XVI of the
Indian Penal Code, or under the suppression of Immoral Traffic in Women
and Girls Act, 1956 (104 of 1956) whose previous conviction or
convictions taken in conjunction with the facts of his case show that he
habitually commits offences against persons or is habitually engaged in
immortal traffic in women or children;
3. Any person committed to or detained in prison under section 123 (read
with section 109 or 110) of the Code of Criminal Procedure,1898;
(Correspnding section 122 (r.w.s. 109 or 110) of the Code of Criminal
Procedure,1973).
4. Any person convicted of any of the offences specified in clauses (1) and
(2), when it appears from the facts of the case, even though to previous
conviction has been proved, that he is by habit a member of a gang of
dacoits or of thieves or a dealer in stolen property or a trafficker in women
or children for immoral purpose;
5. Any person convicted by a Court or Tribunal acting outside India, of an offence
which would have rendered him liable to be classified as a habitual criminal, if he
had been convicted in a Court established in India; and
6. Any person who is a habitual offender under the Bombay Habitual Offender
Act,1959 (Bom.LXI of 1959).
Explanation – For the purpose of this classification, the wordconviction includes as an
order made under section 118 read with section 110 of the Code of Criminal Procedure,
1898 (Corresponding section 117 r.w. 110 of the Code of Criminal Procedure,1973).
(B) The Government of Maharashtra have given the following directions to Government
of Maharashtra, Home Department, Resolution No.COP,5471/IV,dated the 1st January
1974 :
1. In supersession of all orders regarding grant of class I to convicted
prisoners, the system of classification of convicted prisoners into Class I
and Class II should be done away with. All convicted prisoners within the
prison should be treated alike regard being had only to age, physical
condition, type of crime committed and the corrctive treatment needed.
Undertrial prisoners should, however, be continued to be classified into
Class I and Class II as before.
2. The facilities now available to ClassI prisoners should be made available
in individual cases on medical and/or psychological grounds for such time
as they are considered essential. For this purpose, Classification
Committees should be formed by the Inspector General of Prisons, State of
Maharashtra. Pune, uner the Chairmanship of Regional Deputy Inspector
General of Prisons. The Deputy Inspector General of Prisons (Head
Quarters), Pune, should also be associated with the Committees.
3. The Special Considerations should also be continued to be shown to
prisoners who are convicted for participating in Satyagrahas and the
benefits and other facilities contained in Government orders issued in 1960
should also be continued to be made available to them even after
conviction.
(C)For the purposes of grant of prison amenities and privillages, undertrials are
classified as Class I or Class II having regard to their social Status, education and the
habit of life to which they are accustomed.
(D)The trial court may recommended that an undertrial prisoner may be placed in Class
I, having regard to his social status, education and the habit of life to which he is
accustomed.
Muddemal
1. When property is produced before a Court with a list, the list should be
exhibited and it should be seen that each article is separetely marked and
numbered for identification.
2. Where any of the articles mentioned in the list have been sent to the
chemical Analyser for examination, the corresponding numbers given to
those articles by the police while forwarding the article to the Chemical
analyser as well as the numbers given to them by the Chemical Analyser,
should also be shown in the list.
3. If the property is seized without a list, of it should be prepared and
exhibited. This list should also give where necessary, the particulars
referred to in sub paragraph (2).
4. All the Sessions Judges and Magistrates, should get a map of the Record
Room as well as a map of the Muddemal Room of their Courts prepared,
showing therein the rack with numbers and category of record or
Muddemal kept on each rack and should see that the said map is fixed at
the entrance of each Record Room and Muddemal Room of their Courts.
68.When death or hurt has been caused by a blow from a stick or other weapon, or
when any person is convicted of the offence of being in illegal possessions
thereof, the weight and dimensions of the weapon should be stated in the
proceedings with such particularly as may enable the appellate or revisional Court
to form an opinion as to the character of the weapon and the intention with which
it was probably used, and to enable such Court to Judge the gravity of the offence
and appropriateness of the sentence. The mere entry of “a stick” or “a stone” in
the lsit of property produced before the Sessions Court does not enable the High
Court to Judge whether the stick or the stone was deadly or a comparatively
harmless weapon or to Judge the gravity of the offence and the appropriateness of
the sentence passed.
69.After the receipt of muddemal and other property along with rhe record of every
Criminal Case in the Court by the Criminal SheristedarcumClerk it should be
immediately entered in the property Register to be maintained in the following
form and a note of the Property Register Number should be taken on the
chargesheet (and a case of nonreceipt of the property, a note should also be taken
that it is not received with the chargesheet).
The primary responsibility of making the entries of the property in the Property Register
and taking the notes as aforesaid on the chargesheet shall ordinarily be of the Senior
Clerk in the court of a Magistrate and of the Nazir in the Sessions Court, such entries
made in the Property Register and notes taken on the chargesheet should be veritifed and
countersigned by the Magistrate or by the Clerk of the Court in the Sessions Court in
order to indicate that theproperty produced in the court has actually been entered.
Before passing any first orders, the Presiding Officer should verify and confirm that the
entries in the Property Register and notes on the chargesheet have duly been made
accordingly by thepersons concerned, and in case they are not made accordingly, direct
the Nazir and the Clerk concerned to make the necessary entries in the Property Register
and take the necessary notes on the chargesheeet before passing any first orders in that
behalf.
While sending all the papers in the cases placed on dormant file to the District Record
Rooms, according to the instruction contained in para 83(iii) of Chapter VI and paragraph
17 (9) and (10) of Chapter XX of Criminal Manual all the articles of Muddemal property
in such cases should not be returned or sent back to the police stations concerned for safe
custody under any circumstances; but should normally be preserved or kept in the
custody of the Courts of the Magistrates wherin cases are filed or trial is pending. Only in
exceptional cases, when there is no sufficient space or accommodation available for the
custody of such property in such Courts of the Magistrates, the articles of such muddemal
properties should be sent to the Nazir of the Sessions Court concerned for safe custody
after obtaining the orders of the District and Sessions Judge in hat behalf.
For the purpose of making entries of such muddemal articles received in the District
Court from the Criminal Courts, separate and common registers should be maintained in
the District Court. Such register should not be Courtwise but they should contain a
column for entries indicating the Courts from which the properties are received. The
names of the Courts from which the properties are received should be noted specifically
in red ink in column 3 of such register above the Crimina Case numbers so as to facilitate
the distinguishing of muddemal properties and the different courts from which they are
received.
When the muddemal properties and the records in the case on the dormant file are sent to
the District Courts for the safe custody and preservation, the Magisrate concerned should
call back the records of such cases periodically to issue warrants or summons, as the case
may be.
The muddemal property herein does nt include valuable property
Property Register
Serial Date of receipt of Criminal Name of Description of initials of the
No. the property. Case No. parties articles with Magisrate of
Complainant/ particulars and clerk of the
Accused. Value (weights in Court, Sessions
case of valuables). Courts as to
receipt.
1. 2. 3. 4. 5. 6.
Order of the Date of issue of Date and Signature Name,Signature Signature of
Magistrate notice for return manner of the and address of the
or Judge of the Muddemal of final receipient the person magisrate
regarding property to the disposal. Of the identifying the or clerk of
disposal claimant and the property receipient of the the court,
with date. Date fixed for app. With date. Muddemal Sessions
property. Court.
7. 8. 9. 10. 11. 12.
Remarks
if any.
13.
Valuable Muddemal
70.(a) A separate Register for valuable properties in the same form as the Property
Register should be maintained to facilitate constant check and supervision by the
Magistrate or in the court of Sessions, by the Clerk of the Court over the valuable
muddemal. The valuables should always be returned in the presence of the
Magistrate or, in the Sessions Court, in the presence of the Clerk of the Court. The
entry in the register regarding delivery of the property should be countersigned by
the Magistrate or, in the Sessions Court, by the Clerk of the Court.
(b) The following shall be treated as valuable properties :
i. All cash consisting of current coins and currency notes irespective of the
total value;
ii. Gold and silver coins and currency notes withdrawn from circulation or
which have ceased to be legal tender;
iii.Counterfeit coins and currency notes;
iv. Gold, Silver and Platinum in whatever form including articles or
ornaments thereof;
v. Precious stones, pearls and corals including articles or jwellery made from
or set with these;
vi. Wrist watches, timepieces, transistors, fountainpens and such other
costly articles of luxury;
vii.Curious and antiques of considerable value'
viii.opium, Ganja and other narcotics;
ix. All valuable securities, including Government and other promissory notes
negotiable instruments of all kinds, debebture and share certificates,
security deeds and deposit receipt and certificates;
x. Title deeds relating to immoveable property;
xi. Important original documents ; and
xii.Such other articles which the Magistrate or the Judge thinks should be
regarded as valuable articles having regard to their utility and value, and
the attraction the articles have for the public generally.
71.All Judicial Magistrates and Clerks of Courts of Sessions Courts shall have a test
check of 10 per cent of the items of property every month and complete check
once in six month in case of nonvaluable muddemal property with reference to
property register. They shall verify the entire valuable property with reference to
valudable property register atleast once a month. They shall make an endorement
with date about such verification, in the remarks column of the above register and
also make a report ot the Sessions Judge every month of having verified the
valuable muddemal property and every six months of having verified the order
muddemal property.
Return of disposal of Bhatta or Muddemal.
72.Bhatta money to be paid to witnesses or to be returned to the depositors, if not
claimed in person within fifteen days from the final disposal of the case, should be
remitted to the person concerned by money order or in stamps if under Rs.2 (vide
paragraph 5 of Chapter XXVII). If the amount remitted is returned undelivered by
the Post Office because the payee could not be traced, it should be brought on the
Criminal Deposit Register for disposal according to the usual rules or credited to
Government.
Note : The Magistrates and Judges should comply with the following directions,
so long as they are not inconsitent with the provision of sections 451 to 459
(Chapter XXXIV) of the code of criminal Procedure,1973, as these directions are
not intended to fetter the judicial discretion vested in them under the aforesaid
provisions of the Code of Criminal Procedure, 1973.
73.(1) (a) As the scope for loss of muddemal property is greater in the case of
disposed of cases, the Presiding officer should see that the property in non
appealable cases is disposed of as soon as possible after such cases are decided.
(b) In appealable cases, whee the appeal lies to the Sesions Court of the District
Magistrate, Muddemal property may be disposed of after a period of 90 days from the
date of the decision of the case, if in the meanwhile no intimation of an appeal having
been filed has been received; but if such an intimation is received before that period, such
property shall not be disposed of until the appeal is decided.
© In appealable Cases; where the appeal lies to the High Court but arises from the
Metropolitan Magistrate's Court, the muddemal property may be disposed of after a
period of 180 days from the date of the decision of the case, if in the meanwhile no
intimation of an appeal having been filed in the High Court has been received, but if such
an intimation is received before that period, such property shall not be disposed of until
the appeal is decided by the High Court.
(d) In appealable cases, where the appeal lies to the High Court but arisesfrom the
Sessions Court, the muddemal property may be disposed of after a period of one year
from the date of the decision of the cases, if in the meanwhile no intimationof an appeal
having been filed in the High Court has been received but if such an intimation is
received before that period, such property shall not be disposed of until period of one
year expires from the date of the decision of the appeal to the High Court, and if in the
meanwhile an intimation is received by the Sessions Court, of an appeal having been
filed before the Supreme Court, such property shall not be disposed of until the appeal is
decided by the Supreme Court.
2. Muddemal should be restores, when a nonappealable sentence is passed on the
expiration of two months from the date of the sentence, except in the case of
livestock, or property subject to speedy and natural decay, which may be restored
at once, and except in cases in which a bond is executed under subsection (2) of
Section 452 of the Code of Criminal Procedure, 1973.
3. In every case, after the expiry of the respective periods mentioned in that behalf in
subparagraphs (1) and (2) above, the Magisterite should issue a notice in
duplicate or by a Registered Post A.D. Or both to the person entitled to receive
dback the muddemal property and fix a date for appearance of such person for
receipt of the property. In case of dispute or doubt regarding the identity of the
claimant, the Court may, in its discretion, direct the person claiming to be entitled
to receive the property under the orders of the Court, to furnish such security as it
deems fit for return of the property or its value. If, after intimation, the person
fails to appear before the Court to receive the muddemal on the fixed date or, if
due to want of address or otherwise it is not possible to give the notice to the said
person, the muddemal should be sold at his cost by public auction and the amount
so realised be credited to Criminal Deposits. No sale will be necessary in the case
of property which consists of cash only. The fact of issue of the notice as above,
of appearance of the claimant on the date fixed for receipt of the Muddemal
Property and actual delivery of the property to the receipient on that date or any
other date to which the matter may be adjourned should be entered in the Property
Register.
Provided that if the value of the property is less than Rs.100 the person entitled to receive
back the muddemal property may be served with a notice issued under certificate of
posting.
4. A quarterly report should be submitted to the Sessions Judge along with the one
referred to in paragraph 71, to the effect that the muddemal property in cases
decided six months prior to the date of the report has been disposed of. The report
should also state the number of cases in which the muddemal property remained
to be disposed of, with the necessary explanation therefor.
In order to enable the Presiding Officer and the Clerks of the Courts to verify the
muddemal property with reference to the tntries in the Property Register, on the first of
every month, Senior Clerk in the Judicial Magistrate's Courts and the Nazir in the
Sessions Court should prepare the Balance Sheets of undisposed of Muddemal property,
showing only the numbers of the cases, the years and ;the serial numbers in the property
Register. It is, however, not necessary to copy out the details of the articles therein. Every
day new additions, if any, should be entred therein and the entries of the cases from the
Balance Sheets in which Muddemal property has been disposed off should off be struck
off.
The Senior Clerk and Nazir should obtain the signatures of the Presiding Officers and the
Clerks of the Courts respectively on which Balance Sheets and the same should be kept
handy by the Muddemal Clerks.
The Judicial Magistrates and the Clerks of the Courts should verify the Muddemal
Property with the help of the Balance Sheets. The Senior Clerks and the Nazir should be
held solely responsible for the preparation and the correctness of the Balance Sheets.
Whenever the clerk in charge of Muddemal articles is transferred or if any change is
made in his duties, the said clerk should hand over the Muddemal articles to the clerk
taking over the latter should take such Muddemal articles in his charge after verifying the
same with reference to the Property Register, (Which includes both the Property
Registers viz, valuable and General) and with reference to the monthly Balance Sheet.
74.Money awarded by the Court under Section 357(1) to (4) and 359 of the Code of
Criminal Procedure, 1973, (Section 43 of the Court fees Act,1959) should be paid
to the person concerned on the day it is recovered ifhe is present or sent to him by
money order at his cost,. If a nonappealable sentence is passed or one month after
the expiration of the period of appeal if no appeal has been filed. If the amount is
returned by the Post Office because the payee could not be traced, it should be
kept in deposit and dealt with as laid down in Article 198(b) of the Civil Accounts
Code, VolumeI.
Disposal of gold in possession of Civil and Criminal Courts under
Gold Control Orders of Government of India.
75.The position, under Part XIIA of the Defence of India Rules, 1962, of the Civil
and Criminal Courts who are in possession of gold or gold ornaments belonging
to the parties to the proceedings is as follows :
(a) Declaration of nonornament gold under Rule 126I : A court of law is not a person
within the meaning of Rule 126I. Courts are not, therefore, required to make a
declaration under Rule 126I whenever they come into possession of any nonornament
gold. However, in order to facilitate the proper enforcement of the Gold Control Rules, it
is considered desirable that they should send an intimation of such gold to the proper
Officer of Central Excise having jurisdiction over the area in which the court is located.
(b) Disposal of ornaments under Rule 126C _ As regards the disposal of ornaments
coming into their possession, the Courts cannot be treated as dealers under the Rules as
they will not be selling the ornaments in the sense of carrying on any business. The
Courts would, therefore, stand on par with private individuals. In such cases there is no
restriction regarding the purity of the gold ornaments sold. In other words, the courts,
will be free to sell ornaments of over 14 carat purity as well toany purchaser, irespective
of whetherhe is a private individual or a dealer No. specific exemption under the Gold
Control Rules for this purpose will, therefore, be necessary.
76.Extract from letter F.No.28/7/63GC I, dated the 12th October, 1965 being the
Circular letter No.Gold 40/65 from the Deputy Secretary to the Government of
India, Ministry of Finance, Department of Revenue, to the secretary
F.D.Government of Maharashtra.
“There is no objection to the return of gold ornaments (irrespective of purity in the
custody of the Courts without any intimation to the Central Excise Officer unless an
advice has been received by the Courts from the Central Excise Officer that these
ornaments, were required in connection with any Department proceedings.
“As regards nonornament gold, the position is different, Private individuals are not
entitled to acquire or received nonornament gold except by succession,intestate, or
testamentry or in accordance with a permit issued by the Gold Control Administrator.
Only a licended dealer in gold can received nonornaments gold without any prior permit
and he will include the quantity so received in his monthly return.
“Accordingly, whenever nonornaments gold in the custody of a Court is to be returned,
that owner, if he is not licenced dealer, should be required obtain necessary authorisation
or permit from the Deputy Secretary, Regional Office of the Gold Control Administrator,
Laxmi Building,22,Sir P.M.Road, Bombay 400 001.
Disposal of Forged Coins and Currency Notes
77.Courts in the moufussil should transmit to Treasuries coins coming before them
under sections 452, 457 and 458 of the Code of Criminal Procedure,1973,together
with a short description of the case and any implements, such as dies, moulds, etc.
which may have been found, for being sent on by the Treasuries to the mint
through the Deputy Inspector General of Police, Criminal Invistigation
Department, Courts in Greater Bombay should transmit the same direct to the
Mint through the Commissioner of Police, Bombay.
78.In cases of forgery of currency notes, all moulds dies, and other instruments
produced in the case should be delivered to the District Superintendement of
Police by Courts in the Moufussil and to the Commissioner of Police by Courts in
the Presidency Town.
Disposal of Confiscated Drugs
1. The Court shall refer the confiscated drugs to the Inspector concerned for
report as to whether they are of standard quality or contravene the
provisions of the act or the Rules in any respect.
2. If the Inspector, on the basis of Government Analyst's report, finds the
confiscated drugs to be not o standard quality or to contravene any of the
provision of the act or the rules made thereunder, he shall report to the
court accordingly. The Court shall thereupon order the destruction of the
drugs. The destruction shall take place under the supervisior of the
Inspector in the presence of such authority, if any, as may be specified by
the Court.
3. If the Inspector finds that the confiscated drugs are of standard quality and
do not contravene the provisions of the Act or the rules made thereunder,
he shall report to the Court accordingly. The Court may then order the sale
of the Drugs by public auction to any party holding a requisite licence
under the Act.
Disposal of confiscated articles under the Bombay Prohibition Act. 1949,
(Bombay Act XXV of 1949)
80. Under Rule 2 of the Bombay Prohibition Confiscated Articles (Disposal) Regulations,
1953, brought into force under Clause (i) of subsection (1) of Section 144 of the Bombay
Prohibition Act, 1949 (Bombay Act XXV of 1949), if in any case tried by a Court, the
Court orders the confiscation of any article, the said article shall be made over to the
Collector of Excise for disposal, or shall be disposed of under the orders of the Collector
of Excise, according to the said regulations.
81. Useful agricultural implements, such as axes, crowbars, sickles, etc., which may be
used in the perpetration of an offence but which are not covered by the Indian Arms Act,
should be disposed of by public auction, and the amount realised should be credited to
Government. If such articles cannot be sold as useful implements by public auction, they
may be sold as scrapt by public auction or otherwise for whatever price they may fetch,
and the amounts so realised may be credited to Government.
So far as weapons like swords, big knives, scimitars, spears, etc., are concerned, the
existing provisions of section 518 of the Code of Criminal Procedure, 1898,
(Corresponding Section 452 of the Code of Criminal Procedure, 1973) should be
followed and the Courts concerned should send such articles, without destroying them, to
the District Magistrate for disposal after confiscating them.
Rules for the conduct of sales of confiscated property
82. I Sales when to take place Confiscated moveable property shall be sold as soon as
possible after the expirty of the period of appeal or revision or after the disposal of appeal
or rivision, if any. The Magistrate concerned shall make proper inquiry and ascertain the
fact that neither appeal not revision is filed in the matter before the proeprty is put to
auction.
II. Sales by whom to be conducted and how to be made (i) The sales should be
conducted by the Magistrate or by such other responsible person as the Magistrate may
appoint in this behalf. The Magistrate shall cause a proclamatino of the intended sale to
be made in the language of such Court in the prescribed from (Annexure A).
(ii) Such proclamation shall state the date, time and plce of sale, and specify as fairly and
acurately as possible the description of the property to be sold.
(iii) It shall also state that the bidders will have to pay the price immediately.
(iv) It shall be incumbent upon the Magistrate to fix the upset price of the articles to be
sold. Valuables should be got assessed through experts.
III. Mode of publishing proclamation – The proclamation shall be published by affixing a
copy thereof upon the Notice Board of the District and Sessions Court, of the Court
concerned, and of the Collector and the Mamlatdar, and in such other manner or mode as
the Magistrate may think fit. Where the property to be sold is worth more than Rs. 500,
and if the Magistrate so directs, such proclamation shall be published in a local news
paper after obtaining the sanction of the Sessions Judge for the cost of such publication.
IV. Time and place of Sale. (i) The sale shall not take place until after the expiration
of at least 15 days from the date on which the copy of the proclamation has been affixed
on the Court Notice Board of the Magistrate holding the same.
(ii) Auction sale should be held during the Court and within the Court premises.
V. Adjournment or stoppage of sale. The Magistrate may in his discretion adjourn the
sale to a specified date and hour recording his reasons for such adjournment.
VII. Sale how to be conducted. (i) Proceedings of the sale shall be written in the
prescribed form (Annexure B)
(ii) If convenint, the property may be sold bylots. Valuable articles, however, should not,
as far as possible, be auctioned in lots.
(iii) Sale shall be confirmed in the name of the highest bidder unless the Magistrate
thinks that the bid offered is grossly inadequate, in which case the property shall be put to
sale again.
(iv) The price of the articles shall be paid at the time of sale.
(v) The officer conducting the sale shall pass a receipt for the price paid and then hand
over the property to the purchaser.
(vi) If the price is not paid, the property shall be resold.
VIII. Defaulting purchaser answerable for loss on resale. Any deficiency in the price
resulting upon such resale shall be recovered from the defaulting bidder, and if he fails to
make good the same, the same may be recovered by issuing distress warrant against him.
ANNEXURE A
Notification of the sale
In the Court of there
MAGISTRATE at
CRIMINAL CASE No.
Complainant
Accused.
Notice is hereby given that this Court has decreed the sale of the movable property,
involved in the abovementioned case, and and specified in the schedule hereunto
annexed.
The said sale shall be by public auction and the property shall be divided into lots as
specified in the said schedule and put up for sale. Or it shall be divided into lots at the
time of the sale and shall be put to auction.
Provided no adjournment order is issued in the meanwhile, the said sale shall be
conducted by
at at a.m./p.m.
on ______________________
Additional conditions of the auction sale are as follows :
(1) The details contained in the following schedule have been given according to the best
of the Court's knowledge. However, the Court shall not be held responsible for any error
or false information or details contained in this proclamation.
(2) The Officer conducting the sale shall decide by what amount the auction bids should
be raised. Should there beany dispute regarding the amount of the auctionbid or the
person who offered it, the lots in question shall be reauctioned forthwith.
(3) The highest bidder shall be declared to be the purchaser of any lot, provided always
that he is legally qualified to bid, and provided that it shal be in the discreation of the
Magistrate or the Officer conduction the sale to decline acceptance of the highest bid
when the price offered appears so clearly inadequate as to make it advisable to do so.
(4) The Officer conducting the sale may, if he finds it necessary, adjourn the sale
recording his reasons for such adjournment.
(5) The price of each lot shall be paid at the time of the sale or as soon thereafter as the
Officer conducting the sale directs and in default of payment, the property shall forthwith
be reauctioned and resold. Any deficiency in the price resulting upon such resale shall
be recovered from the defaulting bidder.
Issued this day of 19 under the signature and the seal of the Court,
Magistrate
Schedule showing the property
Lot number Description of the property for sale
1 3
ANNEXURE B
List of the movable property sold by auction at in the Court of Magistrate at
Criminal Case No. of 19
The property mentioned below intended for sale in the abovementioned Criminal Case
was sold today by public auction
Sale commenced at a.m./p.m.
The purchase price was recovered from the highest bidder and he was given the receipt.
and the property was given in his possession.
Date this day of
Witnesses
(1) ___________________________________
(2) ____________________________________
Magistrate
Dormant file
83. (i) All cases, in which the accused are of unsound mind and are consequently unable
to make a defence, or are absconding and cannot be traced or served with warrants,
summons or notices for a period of one year or more from the date of receipt of the chare
sheet or the complaint, should be placed on the Dormant File by an order in writing of the
Presiding Magistrate :
Provided that no case shall be kept on the Dormant File, if the Judge or Magistrate, as the
case may be, after considering the Police report or the information in his possession, is of
the opinion that the accused is likely to be found within a reasonable time thereafter:
Provided further that cases under the Motor Vehicles Act, 1939, the Cantonments Act,
1924, Indian Railways Act, 1890, the Bombay Police Act, 1951, the Bombay Public
Conveyances Act, 1920 (Act No. VII of 1920) and Municipal Acts and petty cases, under
such other Acts as the High Court may from time to time direct, may be put on the
Dormant File, by an order in writing passed by the Magistrate, if the Magistrate after two
attempts at service, is of the opinion that it will not be possible to secure the attendance of
the accused within a reasonable time.
(ii) A separate register (in the form given below) should be maintained, showing all cases
which are put on the Dormant File :
Dormant File Register
Serial Case Date on Reasons Date on Date Date
Date Re
No. No. which for which when when the when mark
keeping warrants, case papers s
the case the are
it on summonses case transferr
is put on
D.F. , notices ed to the destroyed
the D.F. is Record
were
reissued revive Room
after d
keeping
case on
D.F.
1 2 3 4 5 6 7 8 9
(iii) All papers of a case on the Dormant File should be sent to the Record Room after the
expiry of one year from the date when the case is put on Dormant File.
In cognizable cases, before keeping the case on dormant file on the ground that any of the
accused person is or are absconding or cannot be traced, procedure as prescribed in
sections 82 and 83 whenever applicable as prescribed in section 446 of the Code of
Criminal Procedure, 1973, should invariably be followed.
Procedure in section 299 of the Code of Criminal Procedure, 1973, should also be
followed before keeping the case on dormant file.
84. Where, pending a criminal case, the accused is reported to be dead and the case,
therefore, abates, the Court should pass an order recording these facts in the following
form :
“Accused reported to be dead.”
'Proceeding abate.'
Dress of Officers and Soldiers appearing before Criminal Courts.
85. The following instructions for the dress of officers and soldiers appearing before a
criminal Court (other than a Court established under military law) are reproduced for the
information of Criminal Courts (Government Resolution in the Military Department No.
1686, dated the 29th August 1891) :
(1) An officer or soldier required to attend a Court in his officer capacity should appear in
uniform with sword or sidearms. Attendance in an official capacity includes attendance
(a) as witness, when evidence has to be given of matters which came under the
cognizance of the officer or soldier in his military capacity.
(b) by an officer for the purpose of watching a case on behalf of a soldier under his
command.
(2) An officer or soldier required to attend a Court otherwise than in his official capacity
may appear either in plain clothes or uniform.
(3) An officer or soldier shall not wear his sword or sidearms if he appears in the
character of an accused person, or under military arrest, or if the presiding Officer of the
Court thinks it necessary to require the surrender of his arms in which case a statement of
the reasons for making the order shall be recorded by the presiding officer, and, if the
military authorities so request, forwarded for the information of the appropriate Chief of
Staff.
(4) Firearms shall under no circumstances be taken into Court.
Dress of the Police Officers appearing before Criminal Courts.
86. The following extracts (rules, 239, 241 and 432 from the Bombay Police Manual,
1959, Volume I and III respectively, in regard to the uniform to be worn by the Police
when attending Courts, are reproduced for the information of the Judges and
Magistrates :
Uniform to be worn on various occasions by superior Gazetted Officers :
“Indian Police and Indian Police Service Officers shall wear such uniform as prescribed
in the Indian Police Service (Uniform) Rules, 1954, vide Handbook of Rules and
Regulations for All India Services, Volume – I, issued by the Government of India,
Ministry of Home Affairs, on various occasions as specified therein.”
“Working dress will be worn by other superior Gazetted Officers belonging to the
Bombay Police Service when giving evidence in courts.:
Uniform to be worn on various occasions by subordinate Police Officers :
“Inspectors of Police and Police Officers of lower ran will always apear in uniform, when
giving evidence or prosecuting cases in Courts. The Police Officers and men of the State
Criminal Investigation Department, the Greater Bombay C.I.D., Local Crime Branches
and Local Intelligence Branches, Anti – corruption and Prohibition Intelligence are,
however, allowed to appear in their ordinary dress in Courts.”
Rules for Trial of Persons subject to Military, Naval or Air Force Law.
87. The following ruler made my the Central Government are reproduced :
1. These rules may be called the Criminal Courts and Courtmartial (Adjustment of
Jurisdiction) rules,1978.
2. In these rules, unless the context otherwise requires :
(a) “Commanding Officer”.:
(i) In relation to a person subject to military law, means the Officer Commanding the unit
to which such person belongs or is attached :
(ii) in relation to a person subject to naval law, means the commanding officer of the ship
or naval establishment to which such person for the time belongs and
(iii) in relation to a person subject to air force law, means the officerfor the time being in
command of the unit to which such person belongs or is attached;
(iv) (b) Competent air force authority “means the Chief of the Air Staff the air or other
officer commanding any command, group wing or station in which the accused person is
serving, or where such person is serving in a field area, the Officer Commanding the
forces or the air forces in the field;
(c) “Competent military authority” means the Chief of Army Staff,or Officer
Commending the army, army corps, division, area, subarea or independent brigade in
which the accused person is serving, and except in cases failling under section 69 of the
Army Act, 1950 (46 of 1950) in which death has resulted, the officer commanding the
brigade or subarea or station which the accused person is serving'
(d) “Competent naval authority” means in chief of the Naval Staff or the Flag Officer
Commandinginchief, Western Naval Command,Bombay or Flag Officer Commanding
inchief, Eastern Naval Command, Vishakapatnam or the Flag Officer Commanding,
Southern Naval Area,Cochin or the Flag Officer Commanding, Western Fleet or the Flag
Officer Commanding, Eastern Fleet or Senior Naval Officer where the accused persons is
serving.
3. Where a person subject to military, naval or air force law, or any other law relating to
the Armed Forces of the Union for the time being in force is brought before a Magistrate
and Charged with an offence for which he is also liable to be tried by a Courtmartial,
such Magistrate shall not proceed to try such person or to commit for the case to the
Court of Sessions, unless :
(a) he is moved thereto by a competent military, naval or air force authority,
(b) “he is of opinion, for reasons to be recorded, that he should so proceed or to commit
without being moved thereto by such authority.
4. Before proceeding under clause (d) of rule 3, the Magistrate shall give a written notice
to the Commanding Officer or the competent military, Naval or air force authority, as the
case may be, of the accused and until the expiry of a period of fifteen days from the date
of service of the notice he shall not;
(a) convict or acquit the accused under section 252, subsections (1) and (2) of section
255, subsection(1) of section 256 of section 257 of the Code of Criminal Procedure,1973
(2 of 1974), of hear him in his defence under section 254 of the said Code;or
(b) frame in writing a charge against accused under section 240 or subsection (1) of
Section 246 of the said Code; or
(c) make an order committing the accused for trial to the Court of Session under section
209 of the said code ; or
(d) make over the case or inquiry or trial section 192 of the said Code.
5. Where a Magistrate has been moved by the competent military, naval or air force
authority, as the case may be, under clause (a) of rule 3, and the commanding officer of
the accused or the competent military, naval or air force aurhority, as the case may be,
subsequently gives notice to such Magistrate that, in the opion of such officer or
authority, the accused should be tried by a Courtmartial, such Magistrate, if he has not
taken any action or made any order referred to in clauses (a) (b), (c) or (d) of rule 4,
before receiving the notice, shall stay proceedings and, if the accused is in his power or
under his control, shall deliver him together with the statement referred to insection (1)
of section 475 of the said Code to the officer specified in the said subsection,
6. Where within the period of fifteen days mentioned in rule 4, or at any time thereafter
but before the Magistrate takes any action or makes any order referred to in that rule, the
commanding officer of the accused or the competent military, naval or air force authority,
as the case may be, gives notice to the Magistrate that, in the opinion of such officer or
authority, the accused should be tried by courtmartial, the Magistrate shall stay the
proceedings, and if the accused is in his power or under his control, shall deliver him
together with the statement referred to in subsection (1) of section 475 of the said Code
of the officer specified in the said subsection,
7. (1) When an accused has been delivered by the Magistrate under rule 5 or 6, the
commanding officer of the accused, or the competent military, naval or air force
authority, as the case may be, shall, as soon as may be, inform the Magistrate whether the
accused has been tries by a Courtmartial or other effectual proceedings have been taken
or ordered to be taken against him.
(2) When the Magistrate has been informed under subrule (1) that the accused has not
been tries or other effectual proceedings have not been taken or ordered to be taken
against him, the Magistrates shall report the circumstances to the State Government
which may, in consultation with the Central Government, take appropriate steps to ensure
that the accused person is clerk with in accordance with law.
8. Notwithstanding anything in the foregoing rules, where it comes to the notice of a
Magistrate that a person subject to military, naval or air force law, or any other law
relating to the Armed Forcesof the Union for the time being in force has committed an
offence, proceedings, in respect of which ought to br instituted before him and that
thepresence of such person cannot be procured except through military, naval or air force
authorities, the Magistrate may be a written notice require the commanding officer of
such person either to deliver such person to a Magistrate to be named in the said notice
for being proceeded against according to law, or to stay the proceedings against such
person before the Courtmartial if since instituted, and to make a reference to the Central
Government for determination as to the court before which proceedings should be
instituted.
9. Where a person subject to military, naval or air force law or any other law relating to
the Armed Forces of the Union for the time being in force has committed an offence
which in the opinion or competent military, naval or air force authority, as the case may
be, ought to be tries by a Magistrate in accordance with the civil law in force or where the
Central Government has, on a reference mentioned in rule 8, decided that proceedings
against such person should be instituted before a Magistrate, the commanding officer of
such person shall, after giving, a written notice to the Magistrate concerned, deliver such
person under proper escort to that Magistrate.
Handcuffing of Prisoners
88. (1) Unless a court otherwise directs, no Prisoner shall be handcuffed of bound while
being taken in custody from the Court premises to a Jail;
Provided that if a Police Officer escorting such prisoner from the Court Premises to a
Jail, considers it necessarty to do so in exceptional circumstances, and cannot get the
direction of the Court, he may handcuff or bind such prisoner after having the premises.
It should also be noted that if the officer in charge of the escort finds that the prisoner is
violent after going a few steps from the Court, he can handcuff him, but, at the same time
he should go back and obtain an order from the court.
(2) No prisoner shall be handcuffed or bound when being taken from a jail to the Court
premises, unless the Jailor of the Jail otherwise directs in Writing. If the Jailor of a Jail
from which a prisoner is being taken to the Court, considers in the circumstances stated
in subpara(1) above, necessary to bind or handcuff the prisoner, he may direct in writing
the Officer in charge of the escort to do so and the officer shall obey such directions:
Provided that the Officer in charge of the escort may himself or/and bind the prisoner
when he considers it necessary to do so in exceptional circumstances arising after leaving
the Jail premises and it is not possible to obtain a direction from the Jailor or the Court.
In case of difference of opinion between the Jailor and the Officer in charge of the excort
about handcuffing of a prisoner, the latter should obtain the order of the Court and, in the
meantime, refrain from taking charge of the prisoner. Any negligence of these
instructions should be dealt with most severely.
Members of the Parliament and the State Legislatures
89. (i) No arrest shall be made within the precincts of the Houses of the Union or a State
Legislatures without obtaining the permission of the Presiding officer concerned.
(ii) To enable the Presiding Officer to decide whether he should grant or refuse
permission for arrest within the precincts of the House, the Court concerned, when
making such a request, should attach a letter of request to the warrant containing a
concise statement setting out the grounds for the arrest and explaining why it is desired
that the arrest should be made within the precincts of the House and why the matter
cannot wait till the House adjourns for the day.
(iii) Whenever a member of the Union or a State Legislatures is arrested on a criminal
charge or for a criminal offence or is sentenced to imprisonment by a court, the
committing Magistrate or Judge shall immediately intimate, in the manner set forth in
subparagraph (v) below, such fact to the Presiding Officer of the House of the
Legislature concerned and also to the Ministry of Home Affairs of the Union or the State
Government, as the case may be, indicating the reason for the arrest or conviction as also
the place of imprisonment of the member concerned.
(iv) Whenever a member of the Union or a State Legislature is released on bail pending
his trial or pending an appeal against his conviction, or is otherwise released, such fact
shall also be intimated immediately in the manner set forth in subparagraph (v) below by
the Court concerned to the Presiding Officer of the House of the Legislature concerned
and also to the Ministry of Home Affairs of the union or the State Government, as the
case may be.
(v) The intimations to be given in accordance with subparagraph (ii) or (iv) above shall,
in the first instance be given by telegrams with copies thereof despatched simultaneously
by post in confirmation to be followed immediately thereafter by registered letters. The
letters to be addresses to the Presiding Officers of the Houses of the Union or the State
Legislature shall be in the appropriate form set forth below:
Place: .........................
Date: ..........................
To
The Speaker,
House of the People, New Delhi or Legislative Assembly,
State of ..................................................................................................................................
The Chairman,
Council of States, New Delhi or Legislative Council,
State of .................................................................................................................................
Dear Sir,
'A'
I have the honour to inform you that I have found it my duty, in the exercise of my
powers under section ......................................... of the ..............................................
(Act), to direct that Shri ....................................................................... Member of the
House of the People/Council of States M.L.A./M.L.C, be arrested for ................................
................................................................................................... (reasons for the arrest).
Shri............................................... Member of the House of People/Council of States
M.L.A./M.L.C. was accordingly arrested at .........................................................
(time) on ........................................................................ (date) and is at present lodged in
the .......................................................................................... Jail, .........................(place).
'B'
I have the honour to inform you that Shri .......................... Member of the House of the
People/Council of States M.L.A./M.L.C. was tried at the .............................
......................................................................Court before me on a charge (or charges) ......
...........................................................................................(reasons for the conviction).
On ................................................ (date) after a trial lasting for
..........................................................................days, I found him guilty of.........................
........................................................................................ and sentenced himself
to imprisonment for ............................................................. (period).
(His application for leave to appeal to .................................................................................
(name of Court) is pending consideration).
'C'
I have the honour to inform you that Shri ....................................... member of the House
of the People/Council of States M.L.A./M.L.C., who was arrested and / or convicted
on..........................................................(date) for ...............................................
(reasons for arrest) and imprisoned for......................................................................(Period
for, .........................................................(reasons for conviction), was released on bail
pending trial/released on bail pending appeal/released on the sentence being set aside on
appeal/discharged by the court/acquitted by the court on.....................................................
....................................................................(date).
Yours faithfully,
(Judge/Magistrate)
CHAPTER VII
AFFIDAVITS
1. (1) The heading of every affidavit to be used in a Court of Justice shall be
“In the Court of at “, naming such Court.
(2) If there be a cause pending in Court, the affidavit in support of, or opposition
to, an application respecting it, must also being with the heading “In the matter
of the case of “in the case.
(3) If there be no case pending in Court, the heading shall be “In the matter of
the application of.
2. Every affidavit shall be drawn up clearly and legibly and, as far as possibie,
in a language which the person making it understands. It shall be drawn up in the
first person and divided into paragraphs numbered consecutively, and each paragraph,
as far as may be, shall be confined to a distinct subject or portion thereof.
3. (1) Every person making any affidavit shall state his full name, father's name
surname, age, profession or trade and place of residence and shall give such other
particulars as will make it possible to identify him clearly.
(2) The affidavit shall be signed by him in his own hand or he shall make his
finger impression thereon.
4. Unless it is otherwise provided, an affidavit may be made by any person having
knowledge of the facts deposed to.
5. (1) Every affidavit should clearly specify what portion of the statement is
made on the declarant”s knowledge and what portion of the statement is made on
his information or belief.
(2) When a particular portion is not within the declarant's own knowledge but
it is stated from information obtained from others, the declarant must use the
expression “I am informed” and, if it is made on belief should add “I verify believe
it to be true.” He must also state the source or ground of the information or belief,
and give the name and address of, and sufficiently describe for the purpose of
identification, the person or persons from whom he had received such information.
(3) When the statement rests on facts disclosed in documents or copies of documents
procured from any court or other person, the declarant shall state the source from which
they were procured and his information, or belief, as to the truth of the facts disclosed in
such documents.
6. Documents or copies thereof (other than those on the record of the case)
referred to in the affidavit shall so far as possible be annexed to it.
7. All erasures, errors, interlineations, etc, in the affidavit shall be legibly
initialled and dated by the declarant.
8. (1) The Officer authorised in this behalf, shall, before administering the oath ask the
declarant if he has read the affidavit and understood the contents thereof, and
if the latter states that he has not read it, or appears not to understand fully, the
contents thereof, or appears to be blind, illiterate or ignorant of the language in
which it is written, the Officer administering the oath shall read and explain or cause
some other competent person to read and explain in his presence the affidavit to
the declarant in the language which both the declarant and the Officer administering
the oath understand.
(2) When an affidavit is read, translated or explained as herein provided, the
Officer administering the oath shall certify in writing at the foot of the affidavit that
it has been so read, translated or explained in his presence and that the declarant
understood the same at the time of making the affidavit and made his signature or
finger impression in the presence of the Officer.
9. The Court may order any scandalous or irrelevant matter in an affidavit to be
struck out or amended.
10. The Court of Sessions may appoint a Comissioner of Oath under Section
297(1)(b) of the Code of Criminal Procedure, 1973, for the purpose of administration
of oath or for soleman affirmation before him for affidavits required for the purpose
of the Code.
Attestation of Affidavits, Power of Attorney, etc.
11. When any person desires to make any application to the High Court in its
civil or criminal jurisdiction, and to support the same by an affidavit or statement on
soleman affirmation, any Court or the Clerk of the Court or Nazir of a Civil Court,
or Senior Clerk or Sheristedar of a Judicial Magistrate”s Court shall, on application,
take such affidavit or statement on solemn affirmation and on payment, by an affixed
stamp, or the prescribed fee, authenticate the same by signature.
12. Every affidavit signed in the presence of any Officer (authorised to administer
an oath) by a person not known to such Officer, should be attested in his presence
by a person known to him and identifying the declarant before him, e.g., a Lawyer or
a Lawyer's clerk etc. The Officer administering the oath should add the following
words after the words “solemnly affirmed before me”, namely “by............................
who is personally known to me” or “by............................ who is identified before
me by.............................. whom I personally know.”
13. The powers of Officers mentioned in paragraph 10 to administer oaths or to
take affidavits extend to all affidavits which are to be filed in any civil or criminal
Court or in the High Court. The practice of taking affidavits, which are not to be
filed in any Court, by such Officers is irregular and should be discontinued.
14. Judicial Officers should, as far as possible, avoid attesting documents because
if they do so, they are liable to be summoned as witnesses to prove them in a Court
of Justice.
15. (1) In all instances in which affidavits are sworn or statements on solemn
affirmation are made before a Judge or a Magistrate or where attestations are made before
such Officer, a fee of Re. 1 should be taken in the shape of stamp, which should be
affixed to the affidavit or the document, as the case may be, and obliterated.
(2) The Officers empowered under paragraph 10 to take affidavits or statements
on solemn affirmation or any Officer of a Court duly appointed in this behalf by the
District Judge may charge a fee of 50 paise, except in the case of affidavits, which
are made for immediate use of the Court, in which the Officer is employed. Half
of the fee so charged shall be paid to the Officer before whom the affidavit is affirmed.
The other half shall be taken in the form of a stamp, which should be affixed to the
document and obliterated.
16. The attestation by Judicial Officers and Officers referred to above should only be
made when the documents mentioned are brought to the Court. Parties who
require documents to be attested at their own houses, should have recourse to other
Officers.
CHAPTER VIII
CHILD AND YOUNG OFFENDERS
1. It is necessary and desirable that Judges and Magistrates made themselves fully
acquainted with their powers and duties for dealing suitably with child and young or
adolescent offenders. The following acts are applicable in such cases :
1. The Bombay Children Act, 1948.
2. the Bombay borstal Schools Act, 1929
3. the Probation of Offenders Act., 1958.
2. methods of Treatment – (1) The Bombay Children Act, 1948, applies to young persons
who have not completed the age of 16 years in the case of boys and the age of 18 years in
the case of girls.
(2) the Bombay Borstal Schools Act, 1929, applies to the adolescent offender who in the
case of a boy is neither less than 16 years, nor more than 21 years of age and in the case
of a girl who is neither less than 18 years, nor more than 21 years of age and who is likely
to benefit by training in an institution like the Borstal School.
(3) The Probation of Offenders Act, 1958, is intended to bring about reformation of the
offender in his own home, if possible. It applies to the offenders of all the age groups. If
the offender has no previous convictions and is convicted of an offence, which is
punishable with no more than two years imprisonment, he may be released after
admonition. In order cases, he may be released on his executing a bond for maintaining
good behaviour during the period not exceeding three years. He may also be placed under
the supervision of a child Welfare Officer (Probation), under section 4(3) of the Probation
of Offenders Act, 1958.
3. Age to be ascertained the correct determination of the age of a young offender is
therefore essential. As soon as such offender is produced before a Magistrate, he should
take steps to ascertain his age. the statement made by the accused person himself is not
sufficient. the Magistrate should therefore ask the Police to state his age and to produce
evidence in support of their statement. The best evidence of age is the entry in the Births
and Deaths Register. where this is not available, the accused person should be got
medically examined and a medical certificate obtained in regard to his age. A definite
finding with regard to his age should be recorded in every case.
After holding an inquiry as aforesaid, if the Magistrate comes to the conclusion tht, the
accused is a child and that he has, therefore, no jurisdiction, the Magistrate should
forward the accused and the chargesheet and other papers to the Juvenile court along with
his finding as regards the age of the child. Although such a finding received by the
Juvenile court is not final, it is not open for him to question or raise the issue of the age of
the child over again for determination. In case of any dispute or controversy about the age
of the child, a reference should be made to the Sessions court for correcting the finding.
4. Enquiries be to made – (1) the successful administration of the above acts will largely
depend upon the care exercised by the court in selecting the right method of treatment.
For this purpose, it is necessary to find out all possible details about the offender, his age,
his character, his physical and mental state of health, his surrounding, his home
conditions and the circumstances in which he came to commit the crime. Before a charge
is framed, or where summary procedure is being followed, at the earliest possible
moment, the court should cause inquiries to be made regarding the offender's antecedents,
his character, his physical and mental conditions, the environments and the conditions in
which he lives, the circumstances in which the offence was committed by him and his
fitness for institutional and vocational training . The inquiries may be made through the
child Welfare Officer (Probation) or in places where there is no such Officer, through the
District AfterCare Associations, wherever such associations exist. Where such
associations do not exist, the Court should cause necessary preliminary inquiries to be
made through any suitable official or nonofficial organisation or any other source of
information, which may be suggested by the District Magistrate.
(2) In some cases, it may appear desirable, with a view to passing the most appropriate
order, to have the offender examined as to his mental and physical conditions. In such
cases, a medical examination should be arranged.
(3) Such preliminary inquiries are unnecessary in cae of the offenders, who are charged
with minor offences and who can be let off with admonition under section 3 of the
Probation of Offenders Act, 1958, ( 20 of 1958), or punished with fine.
5. Section of methods of Treatment(1) Offenders, who have not attained the age of 16
years, cannot be sent to jail, vide section 68 of the Bombay Children Act.
(2) In the case of other young offenders, short sentences of imprisonment should
ordinarily not be awarded. Considerable harm is likely to be caused to them by their
association with other offenders. If the offender is 16 or over and not over 21, the Court
should consider whether he should be dealt with under the Probation of Offenders Act or
under the Borstal Schools Act.
(3) Borstal training is based on the principle that a young offenders character is still
plastic and that the tendency to crime can be corrected by proper treatment. Persons who
have developed a tendency or learning towards crime or who have fallen in bad company
or acquired evil habits are ordinarily suitable for Borstal treatment. A person, who has no
previous convictions, may also be sent to the Borstal School, if the court after making
enquiries finds that the possesses criminal tendencies.
(4) The first offender, who has no evil habits or associations, is ordinarily not suitable for
detention in a Borstal School, inasmuch as he does not rquire the education and training
provides therein. The disirability of using the provisions of the Probationof Offenders Act
should be considered in such cases.
(5) A youth, who is convicted of a single act of violence committed, in a moment of
passion or who is guilty of a sexual offence, should not as a rule be sent to the Borstal
School.
(6) Where the offence committed is such that it cannot suitably be dealt with under the
provisions of the above Acts and where it cannot adequatly be punished except by
imprisonment, the offender should be sent to the Juvenile section of the jail.
(7) As it is not desirable to keep a youth idle in jail, it is ordinarily not desirable to
sentence him to simple imprisonment.
(8) The Sessions Judges should impress upon the Magistrates working under them to
apply the provisions of the Probation of Offenders Act, 1958, liberally in cases of
youthful offenders and in case it comes to their notice that benefit of such provisions was
not given to any youthful offender, they should consider exercising powers conferred
upon them by section 11(3) of the Probation of Offenders Act, 1958, and grant benefits to
such offenders even suomoto.
6. Further instructions in regard to the sue of the provisions of the above acts are
contained in chapters IX, X and XI.
CHAPTER IX
BOMBAY CHILDREN ACT, 1948 (LXXI OF 1948)
1. (1) The following are the important provisions of the Bombay Children Act,
1948 :
(a) Under Section 4 of the Act, “child” means a boy who has not completed the
age of 16 years, or a girl who has not completed the age of 18 years and
“youthful offender” means any child who has been found to have committed
an offence.
(b) Section 6 of the Act provides that with the introduction of Parts II to XI of
the Bombay Children Act, 1948, in any area, the provisions of the Reformatory
Schools Act, 1897, and of section 27 of the Code of Criminal Procedure, 1973,
shall cease to apply thereto, Section 7 provides for the establishment of Juvenile
Courts by Government for any area. Section 8 given a list of the additional
Criminal Courts empowered to exercise the powers of a Juvenile Court. Section
10 provides that there shall not be any joint trial of a child and an adult person
in any area where a Juvenile Court is established under the Act. Section 11
provides that the procedure to be followed by the Juvenile Courts and the
Magistrate empowered under Section 8 is the one prescribed for summary trials
in summons cases in which an appeal lies under the Code of Criminal
Procedure, 1973, as far as practicable and subject to the provisions of the Act.
Section 13 requires the Magistrates to separate the trial of a child from that of
an adult person in a case fit for being committed to the Sessions and to proceed
with the trial of the case in respect of the child alone after committing the case
of the adult to the Court of Session. Section 14 prohibits the appearance of legal
practitioners before Juvenile Courts except in cases where the Court is of the
opinion that in public interests the appearance of a legal practitioner is
necessary and authorises, for reasons to be recorded in writing, a legal
practitioner to appear before it. Section 17 empowers the Juvenile Court to
dispense with attendance of a child at the trial under certain circumstances.
Section 21 details the factors to be taken into consideration, such as the
character and the age of the child, the circumstances in which the child is
living, the reports made by the Child Welfare Officer (Probation) and such other
things before the Court passes orders. Section 23 prohibits publication of
names and address of the children involved in cases or procedings under the
Act. It is, however, open to the Court to allow disclosure , if in its opinion such
disclosure is in the interest of childwelfare and is not likely to affect adversely
the interest of the child concerned. The Court has to give its reasons in writing
whenever it permits such disclosures, Section 24 lays down that the provisions
of the Code of Criminal Procedures, 1973, shall govern all proceedings under
the Act, subject to the special provisions of the Act or rules made thereunder.
(c) Section 40 empowers a Police Officer or other duly authorised person to
bring before a Juvenile Court established for the area or a Magistrate
empowered under Section 8 or where there is no such Court or Magistrate,
before any other Magistrate, a child who has no home or is a distitute etc.
Section 41 provides that when any Magistrate not empowered to exercise the
powers of a Juvenile Court is of the opinion that a person brought before him is
a child, he shall record such opinion and submit the proceedings and forward
the child to the nearest Juvenile Court having jurisdiction in the case, and if
there is no such other Court, to the Sessions Judge to whom he is subordinate.
Section 45 enables the Court to commit the child to a Classifying Centre or to
the Care of an Approved Institution in cases falling under Section 40.
(d) Part VI of the Act provides for punishment for special offences in respect of
children. Section 63 makes all offences under this part cognizable. Section 64A
empowers the Cou8rt to refuse bail in certain cases.
2. (1) The following is a list of Approved Centres and other Institutions (i.e.
Observation Homes and Approved Institutions) certified by Government under
Section 25 and 26 of the Bombay Children Act, 1948 :
List of Government Approved Centres
Serial Name of the Institution and District Tahsil
No. Location.
1 Yeravada Industrial School, Pune, Haveli,
Yeravada, Pune 6
2 Government Certified School for Pune, Ghodnadi,
Girls, Sirur, District Pune,
3 Government Certified School for Pune, Haveli,
Mundhawa, District Pune,
4 Government Certified School for Pune, Ghodnadi, Mentally Deficient Girls,
Sirur,
District Pune,
5 Government Certified School for Solapur, Malshiras,
Boys, Malshiras, District Solapur,
6 Government Certified School for Ahmednagar Ahmednagar
Girls, Ahmednagar,
7 Government Certified School for Solapur, Solapur,
Boys, Solapur,
Bombay Division
8 Government Certified School for Thane Kalyan,
Boys, Shanti Bhavan, Ulhasnagar,
9 Government Certified School for Thane Kalyan,
Boys, Ulhasnagar, District Thane,
10 Government Certified School for Nasik Nasik,
Girls near Nasaradi Bridge, Nasik,
11 Government Certified School for Jalgaon Jalgaon,
Boys, Wak, Taluka Bhadgaon,
District Jalgaon,
12 Shishu Sadan for Children Aurangabad Auragabad,
Aurangabad,
Serial Name of the Institution and District Tahsil
No. Location.
13
Government Certified School for Aurangabad Auragabad,
Boys, Jalna, District Aurangabad,
14 Government Certified School for Aurangabad Aurangabad,
Girls, Paithan, District
Aurangabad,
15 Government Certified School for Osmanabad Murud,
Girls, Murud, District Osmanabad,
Nagpur Division
16 Government Certified School for Nagpur Nagpur,
Boys, Nagpur,
17 Government Certified School for Nagpur Nagpur,
Girls, Nagpur,
18 Government Certified School for Wardha Wardha,
Boys, Pimpari Meghe, District
Wardha,
19 Government Certified School for Buldana Chikhali,
Boys, Buldana,
20 Government Certified School for Sangli Miraj,
Girls, Sangli,
21 Government Approved Centre, Parbhani, Parbhani,
Parbhani,
List of Classifying Centre
1 Government Classifying Centre, Pune Haveli,
Pune.
List of Observation Homes
Serial Name of the Institution District Tahsil,
No.
1 2 3 4
1 Remand Home, Pune, Pune, Haveli,
2 Remand Home, Baramati, Pune, Baramati,
3 Remand Home, Ahmednagar Ahmednagar, Ahmednagar,
4 Remand Home, Shrirampur Ahmednagar, Shrirampur,
5 Remand Home, Sangamner Ahmednagar, Sangamner,
6 Remand Home, Satara, Satara Satara,
7 Remand Home, Karad, Satara Karad,
8 Remand Home, Sangli, Sangli, Miraj,
9 Remand Home, Solapur, Solapur, Solapur,
10 Remand Home, Pandharpur, Solapur, Pandharpur,
11 Remand Home, Kolhapur, Kolhapur Karveer,
12 Remand Home, Bhivandi, Thane, Bhivandi,
13 Remand Home, Karjat, Kulaba, Karjat,
14 Remand Home, Nasik, Nasik, Nasik,
15 Remand Home, Malegaon, Nasik, Malegaon,
16 Remand Home, Manmad, Nasik, Manmad,
17 Remand Home, Dhule (Girls) Dhule, Dhule,
18 Remand Home, Dhule Dhule, Dhule,
19 Remand Home, Jalgaon Jalgaon Jalgaon,
20 Remand Home, Ratnagiri, Ratnagiri Ratnagiri,
21 Remand Home, Aurangabad Aurangabad Aurangabad,
22 Remand Home, Parbhani, Parbhani Parbhani,
23 Remand Home, Nanded, Nanded Nanded,
24 Remand Home, Latur, Osmanabad Latur,
25 Remand Home, Badnera Amravati Badnera,
26 Remand Home, Wardha, Wardha Wardha,
27 Remand Home, Yeotmal Yeotmal Yeotmal,
28 Remand Home, Bhandara Bhandara, Bhandara,
29 Remand Home, Buldana Buldana Chikhali,
30 Remand Home, Chandrapur, Chandrapur Chandrapur,
31 Remand Home, Umarkhadi, } Run by Children's Aid
32 New Remand Home, Mankhurd, } Society, Bombay,
33 Addl.Remand Home, Mankhurd, }
34 Government Remand Home, Nagpur,
Nagpur,
35 Government Remand Home, Beed,
Beed,
36 Government Remand Home, Akola,
Akola,
37 W.B.N. Balkashram (Remand Home)
Pandharpur,
(2) In the interest of children, it is necessary that they should be committed to
institutions which are known to be suitable. All Juvenile Court Magistrates are,
therefore, advised to commit children to the institutions included in the list
which is appended hereto.
If, for any good reason, they propose to utilise a new institution, they should
first arrange for some one to visit the institution, in order to satisfy themselves
about suitability or to obtain the opinion of the Chief Inspector of the Approved
/ Classifying Centre in the matter. In the formar case, a copy of the report
submitted to the Magistrate by the investigating authority should be forwarded
to the Chief Inspector of Approved / Classifying Centre.
The following is a list of recognised “Approved” Institutions :
List of approved Institutions and Private Approved Centres under the
Directorate of Social welfare, Maharashtra State, Pune.
Serial Name of the Institutions and Address.
No.
APPROVED INSTITUTIONS
Pune Division.
01. Hingne Stree Shikshan Sanstha, Karvenagar, Pune29.
02. Hindu Women's Rescue Home Society, 209, Narayan Peth, Pune30.
03. K.M. Mahila Seva Gram Yerandavana, Karve Road, Pune.
04. Poona Seva Sadan Society for Homeless, 613/14, Sadashiv Peth, Pune30.
05. St. Crispin's Home Yerandavana, Karve Road, Pune4.
06. St. Anthony's Home, Near Empress Garden, Pune1.
07. Convent of St., Mary, Panch Howd, Pune2.
08. St. John's Mission Boys Hostel, Guruwar Peth, Panch Howd, Pune2.
09. St. Margaret's School, 2, Stavely Road, Pune1.
10. Tayabia Orphanage, 2410, East Street, Pune1.
11. Church of Christ Boys Home, Baramati, District Pune.
12. Junnar Boys Home, Junnar, District Pune.
13. Kasturba Gandhi National Memorial Trust, Maharashtra Branch, Saswad,
District Pune.
14. Shri Vasta run by the Society of friends of the Sassoon Hospital, Pune.
15. Ramabai Mukti Mission, Kedgaon, District Pune.
15A. Bharatiya Samaj Seva Kendra, 5, Koregaon Park, Pune411 001.
Ahmednagar Division.
16. Shri Sant Gadge Maharaj Chhatralaya, Ahmednagar.
17. Hind Seva Mandal Ramkaran Sarda Vidyarthi Griha, Sarda Building,
Ahmednagar.
18. Balikashram, Delhi Darwaja, Ahmednagar.
19. Clara Bruce High School for Girls, Ahmednagar.
20. St. Hildas Boarding School, c/o St. Monica's Junior College of Education,
Ahmednagar.
21. Hind Vasatigriha, Pathardi, District Ahmednagar.
22. O.C.P.M. School Rahuri, District Ahmednagar.
23. Churches of Christ Girls Home, Shrigonda, District Ahmednagar.
24. M.M. Boys Hostel Vadala Mission, Tal. Shrigonda, District Ahmednagar.
25. Babawadi Mandavagaon Tilak Road (Remand Home Compound) District
Ahmednagar.
26. St. Mary School, Sangamner, District Ahmednagar.
27. Bal Shikshan Mandal, Sangamner, District Ahmednagar.
28. Nava Maharashtra Shikshan Mandal, Shevgaon, District Ahmednagar.
29. Ahmednagar orphanage and Boarding, Opp. Municipal Council, Distict
Ahmednagar.
30. Ahilyashram (Girls) Hostel Run by Hind Vasati Griha, Pathardi, District
Ahmednagar.
**31. Salvation Army Evangeline Booth Hospital, Ahmednagar.
32. Shri Chhatrapati Shahu Boarding House, Dhananis Bag, Satara.
33. Laxmibai Patil Vasatigriha, 216, Yadogopal, Satara.
34. Thakkarbappa Vasatigriha, Taluka Man, District Satara.
**35. Godavari Education Centre, Panchagani District Satara.
36. Velenkar Anath Balakashram, Sangli (Formerly), Velenkar balak Mandir,
Sangli.
37. Shri Swamy Vivekanand Shikshan Sanstha, Tarabai Park, Kolhapur.
38. Anath Mahilashram, 325/E, New Shahupuri, Kolhapur.
39. Shri Deochand Shah Chhatralaya Kagal, District Kolhapur.
40. Hind Kanya Chhatralaya Rajarampuri, Kolhapur.
41. Mahatma Gandhi Vasatigriha, Rukadi, Distict Kolhapur.
42. Savitribai Phule Bhagini Mandal, Thamankar Wada, Ichalkaranji, Distict
Kolhapur.
43. Leprosy Hostel, Solapur.
44. Backward Class Hostel for Boys, Solapur.
45. Backward Class Hostel for Girls, Solapur.
46. W.B.N. Balakashram, Pandharpur, District Solapur.
Bombay Division
47. Our Lady's Home, Opp. Tata Mills, Dadar, Bombay,
48. AnjumanIIslam Board for Social Work, 92, D.N. Road, Bombay,
49. AnjumanEMufidul Yatma Majid EJamil, Madanpura, Byculla, Bombay,
50. Society for protection of Children in Western India, B.J. Home, King Circle,
Matunga, Bombay – 400 019,
51. Maharashtra State Women's Council Rescue Home, Umarkhadi, Bombay
400 009.
52. D.N. Sirur Balakashram, Vile Parle, Bombay 400 056.
53. Salvation Army Women's and Childrens Home, Sion Road, Bombay.
54. Shri Manav Seva Sangh, 252, Sion Road, Bombay 400 022,
55. Hindu Women's Rescue Home Society for running Shradhanand
Mahilashram, King Circle, Bombay.
56. Seva Sadan Society, Gamdevi, Bombay,
57. St. Anthon's Home, J.J. Behram Marg, Byculla, Bombay,
58. St. Cathorin's Home, Veer Desai Road, Andheri (West) Bombay,
59. Leagur of Mercy, 61, Clare Road, Byculla, Bombay 400 008,
60. St. Francy's Orphanage, Mt. Pionears, Borivali, Bombay,
61. St. Joseph's Home Nursury, Raynold Road, Byculla, Bombay,
62. Maze Maher Mahila Jeevan Sanwardhak Mandal, Block No. 21, M.H.
Colony, Near Police Station, Parel, Bombay 400 033,
63. The Bombay Vigilance Association Shelter, Navin Asha, 124D, Phalke Road,
Dadar, Bombay 400 014,
**63A. Malad Balakashram, Mudh Road, Malad, Bombay 400 064,
64. Family Home Naigaon Gild of Services, Naigaon, Bombay, Naigaon Social
Welfare Society, B.D.D. Chawl No. 16, B.J. Road, Naigam, Bombay 400 014,
**65. Lotas Trust Shishu Niketan, run by M.S.W.C. Town Hall (Central Library),
J. Bhagat Singh Marg, Bombay 400 023,
66. Matru Mandir Gokul Orphanage, Deorukh, District Ratnagiri.
67. Mahilashram, Lanje, District Ratnagiri.
68. Shishu Vihar, Tapovan, Odha Road, District Nashik,
69. Anath Mahila Ashram, Gharpure Ghat, Nashik.
70. Manorama Sadan, Manmad, District Nashik,
71. Victoria Orphanage, Dhule,
72. Adhyapak Shikshan Mandal, Sarvodaya Chhatralaya, Yeshwantnagar,
Dhule,
73. Ahilyabai Holkar Education Society's F.P.L. Phophare, Taluka Sakri, District
Dhule,
Aurangabad Division
74. Shri Chhatrapati Shivaji Balak Mandir, Taluka Sagroli, District Nanded,
75. Mahatma Phule Balkalyan Griha Mandir, Dharmabad, Taluka Biloli, District
Nanded,
Nagpur Division
76. Hutatma Smarak Baljeevan Sanskar Kendra, Ashti, District Wardha,
77. Kai Anandrao Meghe Vidyalaya, Borgaon Meghe, District Wardha,
**78. Kushta Seva Samiti Kushtadham, Dattapur, P.O. Nalwadi, District
Wardha,
79. Kasturba Sarvodaya Mandal, Madhan, Taluka Achalpur, District Amravati,
80. Shri Gurdeo Seva Mandal, P.O. Gurukunj Ashram, Mozari, District Amravati,
81. Shri Gajanan Maharaj Shikshan Sanstha (for Girls), Jaistambha Chowk,
Rathi Market, District Amravati,
82. Vinaya Fit Person Institution Manjari Mahasalam, Amravati,
83. Angulimal Fit Person Kishornagar Amravati run by Samatha Shikshan
Prasarak Mandal, Amravati,
84. Shri Gajanan Maharaj Shikshan Sanstha for Boys, Bhatkuli, District
Amravati,
85. Anath Vidyarthi Griha, Nagpur,
86. Shradhanand Anathalaya, South Ambazari Road, Shradhanand Peth,
Nagpur.
87. Hindu Anathalaya Seth Daga Dharmashala, Near Railway Station, Kamptee,
District Nagpur.
88. Matru Seva Sangh Panchawati Ashram, Nagpur.
89. Dayananda Anathalaya, Somal Wada, Siddiki Building (Wardha Road),
Nagpur.
90. Karmveer Awale Fit Person Institution, Bhandara.
91. Vidharbha Maharogi Seva Mandal, Tapowan, District Amravati.
92. Shri Gajanan Maharaj Shikshan Sanstha, Rathi Market, Jaishtambha Chowk,
Amravati.
93. Amrapali Girl's Approved Institution, Warathi, Bhandara Road, District
Bhandara.
** Note. Recognition of these institutions has not been withdrawn but no grant
is paid as Court Committed children have been transferred elsewhere.
3. The following is a list showing the places to which Parts V and VI of the
Bombay Children Act, 1948, as amended by the Bombay Children (Extension
and Amendment) Act, 1963 (Maharashtra Act No. XXXVIII of 1963), have been
applied and the dates on which they were applied together with the numbers
and dates of Government Notifications under which they were made applicable
:
Name of District Date of Government authority.
enforcement
1 Bombay
City of Bombay and 27th March, G.R.H.D. No. 5039/3II,
Suburban District. 1936. dated 24th February, 1936.
2 Ahmednagar.
(a) The Municipal and 15th January, G.R.H.D. No. 5289/4II,
Cantonment limits of 1942. dated 23rd December,
Ahmednagar District. 1941.
(b) Talukas of Belapur, 15th May, 1949, G.R.H.D.No.2668/4II,
Kopargaon, Sangamner, dated 29th April, 1949,
Akola and Shrirampur.
(c) The remaining areas of 15th September, G.N.E. And SWD, No. Ahmednagar
District. 1968, RDH, 1067/31433N,
dated 2nd September, 1968.
3. Amravati
Area comprised in the 26th October G.N.E. And SWD No. BCA
District 1964 1063N (iii), dated 17th
October, 1964,
4. Aurangabad 26th October G.N.E. And SWD No. BCA
Area comprised in the 1964 1063N (iv), dated 17th
District October, 1964,
5. Akola
Area comprised in the 26th October Do.
District 1964
6. Bhandara 11th September C.R.C.1476/72(i)XI
Area comprised in the 1981 dated 11th September
District 1981
7. Buldana 1st June 1967, G.N.E.and SWD. No.
District of Buldana BCA.1066/71715N,
dated 27th May, 1967.
Name of District Date of Government authority.
enforcement
8. Beed 15th September G.N.S.W.C.A.S. And
Area comprised in the Disrict 1972 T.D. No. RDH.1272/13728N, dated 22nd
August 1972,
9. Chandrapur 26th October G.N.E. And SWD No.
Area comprised in the District 1964, BCA.1063N(iii), dated
17th October 1964,
10. Dhule 5th July, 1951 G.R.E.D.No.BCA.1451,
(a) Municipal limits of Dhule dated 5th July, 1951,
(b) The remaining areas of 15th September G.N.E. And SWD No. Dhule District.
1968 RDH. 1067/31433N, dated 2nd September 1968
11. Jalgaon
(a) Town limits of Railway 2nd August 1950 G.R.E.D.No.9930,dated Station, area
of Bhusawal 2nd August 1950,
and Jalgaon.
(b) The remaining areas of 15th September G.N.E. And SWD No.RDH
Jalgaon District 1968 1067/31433N, dated 2nd
September 1968.
12. Kulaba
(a) The village of Pui, Taluka 23rd December G.R.E.D. No.BCA.1053,
Mahad, district Kulaba 1954. dated 23rd December 1968
(b) The remaining areas of 15th April 1966 G.N.E.and SWD No.RDH Kulaba
Distict 1065(i)N, dated 7th April,
1966.
13. Kolhapur
Area comprised in the distict 9th November G.R.H.D.No.9665/5, of Kolhapur
1949 dated 9th November, 1949
14. Nagpur 26th October 1964 G.N.E.and S.W.D.No.BCA.
Area comprised in the district 1063N(iii), dated 17th
October, 1964,
Name of District Date of Government authority.
enforcement
15. Nanded 26th October 1964 G.N.E.and S.W.D.No.BCA
Area comprised in the district 1063N(iv), dated 17th
October, 1964,
16. Nashik
(a) Nashik City Municipal 15th September G.R.H.D.No.4439/4, areas and the
revenue 1944 dated 24th August 1944
(b) Deolali Cantonment 25th April 1946 G.R.H.D.No. 4439/4,
area, Municipal limits dated 11th April, 1946
of Bhagur, the area of
the military camps near
Satpur, Mhasuri and
Nashik Road.
(c) The areas situated within 1st May, 1947 G.R.H.D.No. 675/5, dated
a radius of 2 furlongs 13rd February 1947,
from Railway Station at
Igatpuri and Manmad.
(d) Area of Manmad town 27th June 1957 G.R.L.and SWD No.
and the whole Nandgaon BCA.1456/L,dated 27th
taluka June, 1957,
(e) Malegaon taluka 15th May, 1959, G.N.L.and S.W.D.No.BCA 10084L, dated
28th April,
1959,
(f) The remaining area of 15th September G.N.E.and SWD No.RDH Nasik
District 1968 1067/31433N, dated 2nd
September 1968
17. Osmanabad 1st June 1967 G.N.E.and SWD No. District of Osmanabad
BCA.106671715 N, dated
27th May, 1967,
18. Parbhani 20th October G.N.E.and SWD No.1063 Area comprised in the
district N (iv), dated 17th October
1964,
Name of District Date of Government authority.
enforcement
19. Pune 5th August 1957 G.R.L.and SWD No.BCA
(a) Area of Pune Municipal 1456I, dated 5th August
Corporation and Cantonments 1957,
of Pune and Kirkee including
Railway Station area of Pune
Shivajinagar, Kirkee and Ghorpadi,
(b) The village of Mundwa and 15th June 1941 G.R.H.D No. 4306/4,
the area occupied by Mundwa dated 30th May, 1941,
Industrial Settlement.
(c) Municipal area of Baramati 28th April, 1952, G.R.H.D No.BCA 1452,
and Dhond including dated 28th April, 1952,
(d) Talukas of Indapur, 15th May, 1964, G.R.E and SWD No.BCA Baramati and
Dhond 1063/1159N, dated 9th May, 1964
(e) The remaining areas of 15th September G.N.D. And SWD No.RDH Pune
district 1067/31433N, dated
2nd September 1968,
20. Ratnagiri
(a) Limits of Sawantwadi 1st March 1963 G.N.E.and SWDNo.BCA. Municipality
1062/(i)4023N, dated
12th February 1963.
(b) The remaining part of 1st June 1965 G.N.E.and SWD No.RDH
Ratnagiri district 1064/(ii)N, dated 21st
May 1965,
21. Sangli
(a) Municipal limits and the 14th April 1952 G.R.N.E.D.No.BCA 1451,
Railway Station premises dated 14th April, 1952
of the Sangli town.
(b) The railway and town 26th September G.R.E.D No. BCA 1452,
areas of Miraj. The dated 26th September
railway and town areas 1952
of Madhavnagar. The
town area of Budhgaon.
The railway area of Vishrambag
and Walneswadi railway
Stations.
(e) the remaining area of Sangli 10th June 1968 G.N.E.and SWD No.RDH
district 106731433N dated 6th
June 1968
22. Satara
(a) The City of Satara and 1st November G.R.H.D No. 4858/4, areas situated
within a 1941 dated 9th october 1941,
radius of 5 miles from GPO
in the City of Satara
(b) Municipal limits of Wai 15th August 1942 G.R.H.D No. 5886/4,
Karad dated 15th August 1942
(c) Municipal limits of Panchagani 10th July 1945 G.R.H.D No. 9145/4,
dated 21st June, 1945,
(d) Remaining area of Satara 10th June 1968 G.N.E and S.W.D.No.RDH
district 1067/31433N, dated 6th June 1968
23. Solapur
(a) The Municipal Borough of 29th August 1935 G.R.H.D No. 5943/3, Solapur
dated 23rd August 1935,
(b) The village of Solapur 14th November G.R.H.D No.5943/3,
1935 dated 23rd August, 1935,
(c) The Municipal Borough of 15th September G.R.H.D No. 2566/4,
Pandharpur, Five talukas 1940 dated 28th August 1940,
of Solapur district,
Pandharpur, Mohol, Sangola
Mangalwedha, Malshiras.
(d) Municipal limits of Barsi 15th November G.R.H.D.No477/5, dated
town in Solapur 1950 12th August, 1949,
(e) The remaining areas of 15th September G.N.E. And SWD No.RDH Solapur
district 1958 1067/31433N, dated 2nd
September 1968.
24. Thane
(a) Town limits of Thane, 5th May, 1949, G.R.H.D No. 8360/5, Kalyan, Bhivandi
and dated 2nd May 1949
and the railway station areas
of Thane and Kalyan.
(b) The remaining areas of 15th September G.N.E and SWD No.RDH
Thane Distict 1968 1067/31433N, dated 2nd
September 1968,
(c) Municipal limits of Jawhar 1st April 1960 G.N.L.and SWD No.BCA
Bassein and Dombivli 1059/5956L, dated 14th
and limits of the town of March 1960
Ulhasnagar, that is to say
Kalyan Camps, Nos. 1 to 5
25. Wardha
Area comprised in the 26th October G.N.E. And SWDNo.BCA
district. 1964 1063/N (iii), dated 17th
October 1964.
26. Yavatmal
(a) Area comprised in the 15th April 1966 G.N.E.and SWD No.RDH
Yavatmal district 1065(i)N, dated 7th April,
1966.
(b) The remaining areas of 15th April 1966 G.N.E. And SWD No.RDH
Yavatmal district 1065(i)N, dated 7th April
1966.
4. The following is a list of places in the State of Maharashtra where Juvenile
Courts have been established and their jurisdiction :
Place District Jurisdiction
1. Ahmadnagar Ahmednagar The local area within the limits
of the talukas of Nagar, Newasa, Shevgaon, Pathardi, Parner, Shrigonda, Karjat
and Jamkhed.
2. Sangamner Do. Sangamner and Akola talukas
3. Shrirampur Do. Belapur, Kopargaon and Rahuri
talukas
1. Akola Akola The area comprised in the Akola
district
1. Badnera Amravati The area comprised within the Amravati district
1. Aurangabad Auragabad The area comprised in the Aurangabad District
Place District Jurisdiction
1. Bhandara Bhandara The area within the limits of the Bhandara Municipal
Council.
1. Beed Beed The area comprised in the Beed
district.
1. Bombay Greater Bombay Greater Bombay
1. Buldana Buldana The area comprised in the Buldana district
1. Chandrapur Chandrapur The area comprised within the
limits of the Chandrapur district
1. Dhule Dhule The Municipal limits of Dhule
1. Jalgaon Jalgaon Municipal limits of Bhusawal and Jalgaon towns and the
Railway Station areas of Bhusawal and Jalgaon
1. Karjat Kulaba The whole of Kulaba district
1. Kolhapur Kolhapur The whole of Kolhapur district
1. Nagpur Nagpur The area comprised in the Nagpur district
1. Nanded Nanded The area comprised in the Nanded district
1. Nashik Nashik The Nashik City Municipal area
2. Manmad Do. The Municipal limits of Manmad town.
3. Malegaon Do. The area comprised in the Malegaon Taluka of the Nashik
District.
1. Latur Osmanabad The area comprised in the
Osmanabad District.
1. Parbhani Parbhani The area comprised in the Parbhani District
1. Pune Pune The areas comprised within the limits of
(a) The Municipal Corporation
of the City of Pune,
(b) The Cantonments of Pune and Kirkee and
(c) The Railway Stations of Pune Shivajinagar, Kirkee and Ghorpadi,
2. Baramati Pune Areas covered by the talukas of Indapur, Baramati and
Dhond, including the Railway area at Dhond.
1. Ratnagiri Ratnagiri The area comprised in the Ratnagiri district.
1. Satara Satara The whole of the Satara District except Patan and Karad
Talukas.
2. Karad Do. Patan and Karad Talukas of the
Satara district.
1. Sangli Sangli (i) Areas covered by the Municipal limits and the Railway
station premises of Sangli town in Sangli District.
(ii) The Railway and town area of Miraj, the railway and town area of
Madhavnagar, the town area of Budhgaon, the railway area of Vishrambag and
Wanleswadi railway stations.
1. Solapur Solapur The Municipal Borough of Solapur
2. Pandharpur Do. Municipal Borough of Pandharpur
3. Barshi Do. The Municipal limits of Barshi town.
1. Bhiwandi Thane The whole of Thane district.
1. Wardha Wardha The area comprised within the Wardha district.
5. The following is the form of Monthly Statement of revenue realised under the
Bombay Children Act, 1948, to be forwarded by the Magistrates to the Director
(Child Welfare), State of Maharashtra, Pune :
Statement of Revenue realised under the Bombay Children Act, 1948, in the
Court of for the month of 19 .
Serial Name of Date, amount Unrecovered Total Total Balance
No. person and period of arrears, if amount amount to be from duration of any,
to be recover recovered whom the order, recover ed and at the end
the ed credit of the
amount is during ed month,
recovered, the month into the
including Treasury,
arrears.
1. 2 3 4 5 6 7
APPENDIX
Name of Treasury Amount credited Date of Credit Receipt head to
wherein the amount into the Treasury which the amount
is credited in column 2 is
credited.
1. 2. 3. 4.
Note . The figures in columns 6 and 2 respectively of the above Statement and
Appendix should tally in respect of amounts credited into Treasury in each
month.
No.
Date 19 .
Forwarded to the Director (Child Welfare), Maharashtra State, Pune.
Magistrate.
CHAPTER X
BOMBAY BORSTAL SCHOOLS ACT, 1929 ( XVIII OF 1929)
1. The Bombay Borstal Schools Act applies to young offenders, in the case of a
boy from 16 to 21 years of age (inclusive) and in the case of a girl from 18 to 21
years of age (inclusive) and authorises First Class Magistrates and Superior
Courts to pass in lieu of imprisonment an order for detention in a Borstal
School for not less than 3 or more than 5 years (Section 6).
The Aim of Borstal Training
Enquiries to be made
3. In order to determine whether an offender is a suitable person for being sent
to the Borstal School, the Court should, as soon as it frames the charge, or
where summary procedure has to be followed at the earliest possible moment,
cause inquiries to be made regarding the offender' antecendents, character,
home circumstances, the enviornments in which he lives, his fitness for
institutional and vocational training, and also regarding his mental and
physical state of health. Mental and physical examination together with
assessment of age, should, if necessary, be made by a competent Medical
authority. Other inquiries should be conducted through the District Probation
Officers.
Types which are suitable for Borstal detention.
4. Adolescent offenders may be classified into three categories :
(1) The first offender, who has no criminal habits or associations. Such boys
are not suitable for detention in the Borstal School, inasmuch as they do not
require the education and training provided there. They may be dealt with
under section 4 (3) of the Probation of Offenders Act, 1958.
(2) The youthful offender with a tendency towards crime. The habitual
tendency of leaning towards crime is not to be gauged merely from frequency
of convictions. The Court should take into consideration the report of the
District Probation Officer or any other person, who has been authorised to
make inquiries (which should be initiated at the earliest possible moment) into
the antecendents, character and family history of the accused etc. Courts often
hesitate to commit to Borstal School a young offender on his first conviction
and instead, sentence him to a rigorous imprisonment for a short period. They
direct detention in the Borstal School after the offender has been convicted
twice or thrice. By this time, it is too late for him to derive any benefit from
institutional training, as he has become hardened and by his confirmed
criminal ways is more suited for the Juvenile Section of the ordinary prison
than for the Borstal School. On the other hand, priliminary inquiries may reveal
that a first offender has criminal tendencies. Committal to the Borstal School,
therefore, should not depend on the number of convictions. Courts should
inquire carefully into the previous history of such persons, their surroundings,
home circumstances etc., and if convinced of their bad habits and associations,
should order detention in the Borstal School rathar than short periods of
imprisonment, as the latter in no way act as a deterrent and do nothing to assist
in the reformation of adolescent offenders.
(3) The youthful offender, whose offence is too serious to be dealt with under
the Probation of Offenders Act, 1958, and whose (a) crime and (b) habits and
associations do not indicate that he should derive much benefit by being sent
to the Borstal School, should be sent to the Juvenile Section of the Jail.
Types which are not suitable for Borstal detention
5. (i) Sexual perverts or lads who have been convicted for sexual offences, viz.
Under section 354, 366, 376, 377, 493, 497 and 498, Indian Penal Code, should
not as a rule be sent to the Borstal School, but should be committed to the
Juvenile section of Jail.
(ii) Lads convicted of a single offence of violence committed in a moment of
passion should not ordinarily be committed to Borstal School.
Notice to be given to parent or guardian
6. Section 6 of the Borstal Schools Act requires that parents or guardian should
be given hearing before Borstal detention is decided upon. This requirement
should always be borne in mind by Courts.
Sentence of imprisonment not to be passed, if an order for detention is made
7. Under section 6 of the Act, the Court may, instead of passing sentence of
imprisonment, pass an order for the offenders' detention in the Borstal School
for such term not being less than three years and not more than five years as
the Court thinks fit. If, therefore, the Court decides to pass an order of
detention a sentence of imprisonment should not be passed.
Offenders belonging to other States
8. The Courts should bear in mind that lads committed to the Borstal School
are eventually released on licence and sent back to their homes so that they
may be rehabilitated as far as possible in their own town or village as useful and
honest citizens Aftercare is necessary for this and such help and supervision is
usually provided by, the Probation Officers wherever District Probation and
after care Associations exist and by voluntary public spirited individuals
otherwise. The aim of aftercare is not possible, it is a waste of time and money
to give training, as without the due help and guidance of the Probation Officers
after release from Borstal School, young offenders usually revert to old habits
and vices. In the case of lads coming from a State other than the State of
Maharashtra, such aftercare is difficult and wellnigh impossible, as
organisations for aftercare do not exist or are few and far between. A list is
appended of those States, which are cooperative and where such help is
forthcoming or where similar Borstal Institutions exist and thereby reciprocal
arrangement between the State Government and the Government of the other
State where such Borstal Institutions exist, is possible. Courts should, as a
general rule, refrain from committing young offenders hailing from States other
than those appearing in this list to the Borstal School, Kolhapur, as in such
cases the training given at much expenses by the Government of this State is
likely to be wasted.
10. (1) The list of States which have entered into reciprocal arrangements with
the Government of Maharashtra in respect of maintenance charges of boys
detained in the Borstal School, is given below :
(1) Madhya Pradesh,
(2) Punjab,
(3) Tamil Nadu,
(2) List of States which have after care arrangements for lads released from the
Borstal Schools :
(1) Uttar Pradesh,
(2) Bengal,
(3) Delhi,
(4) Tamil Nadu,
11. List of homes approved by Government to which females convicts
sentenced for offences, other than infanticide, may be sent after release by
Government under Section 432 of the Code of Criminal Procedure, 1973 :
(1) The Salvation Army Women's Industrial Home, Bombay,
(2) The Hindu Women's Rescue Home Society's Shraddhanand Anath
Mahilashram, Matunga, Bombay.
(3) The Hindu Women's Rescue Home Society, Pune,
(4) The St. Catherine's Home, Andheri, Bombay, andheri
(5) Mahila Seva Gram, Yerandavana, Pune.
CHAPTER XI
Probation of Offenders Act, 1958 (XX of 1958)
===============================================================
1. The Bombay Probation of Offenders Act, 1938 ( Bombay Act No. XIX of 1938),
though not specifically repealed by the Probation of Offenders Act, 1958 (Act No. 20 of
1958) shall be deemed to have been impliedly repealed under Article 251 of the
Constitution of India.
Meaning of Probation and Supervision Work
2. Under the Probation of Offenders Act. 1958 (Act 20 of 1958), provision is made
for new methods of treatment for those offenders who are likely to make good, if given a
imprisonment are given, because experience shows that commitment to prison does more
harm than good to certain type of offenders. The purpose of the Act is not punishment but
refoem by means of constructive treatment.
Age of the Offenders
3. This Act applies to the Offenders of all the age groups including those to whom
the Bombay Children Act and the Bombay Borstal School Act do not apply.
Methods of treatment provided under the Act
4. The Act lays down three distinctive methods of treatment for different classes of
offenders:
(a) Section 3 deals exclusively with first offenders, who are convicted of an
offence punishable with not more than two years' imprisonment. It provides
for release of such offenders after due admonition. This method of treatment
is likely to be effective only for a small number of offendoers, as it provides
neither for bonds nor sureties and merely sends the offender back, without
any constructive help, to live in the same conditions, in which he lived when
he committed the offence.
(b) Section 4(1) provides for release on probation. It lays down that the offender
should enter into a bond and he may also be required to give sureties. It
would normally be advisable to take sureties in addition to personal bonds,
as sureties are themselves a gurantee of some efforts towards reform and a
safeguard against the offender removing himself outside the jrisdiction of
the Court and breaking the conditioins of the bond entered into by him.
(c) Section 4(2) provides for release under the supervision of a Probation
proved that offenders are far more likely to make good, when placed under
the guidance of a Probation Officer. It is, therefore, avisable that even in the
case of first ofenders, they should be dealt with under Section 4(2) in
preference to discharge after admonition under Section 3.
(d) Under Section 4(3), the Court has power, while making a supervision orer,
to direct additional conditions to be inserted in the bond to be entered into
by the offender under Section 4(1), and in doing so the Court must have
regard to the particular circumstances of each individual case.
The terms and conditions of the supervision order shall be explained to the
offenders and on copy of the supervision order shall be furnished forthwith
to eah of the offenders, the sureites, if any, and the Probation Officer
Rules made under Act.
(e) In suitable cases, the offener may be directed under Section 5 to pay
compensation and cost of proceedings to the person to whom loss or injury
has been caused.
crime and maintain good behaviour. If he fails to do so, he may be sentenced
for the offence of which he was convicted, or on such first time failure, a
penalty of fine not exceeding fifty rupees may bf imprisonment, the Court
report, if any, and then record its reasons and pass such order to sentence of
imprisonment (except for life), as it deems fit in the circumstances of the
case.
Enquiries to be made befoe passing order
5. The Act is intended for the reformation of offenders in their own homes, if such a
course is likely to succeed. It is essential, therefore, to find ot all possible details about
the offender, his character, his physical and mental ability, the conditions in which he
lives and the circumstances in which he came to commit the crime. As soon as the charge
has been or is about to be framed, the Court, if it considers that the offender, having
regard to the nature of the offene and the part played by him, is likely to be given the
benefit of Section 3 or 4 of the Act, should immediately instruct the District Probation
Officer of the area concerned in Form No. IV appended to the Maharashtra Probation of
Offenders Rules 1966 to make preliminary enquiries about the offender. The Court
should endeavor to obtain full information in the Form III appended to the Maharashtra
Probation of Offenders Rules, 1966, regarding the age, character, antecedents and
physical and mental condition of the offender, which will enale it to make wise selection
of the method of treatment out of the various methods of treatment provided in Sections
3, 4(1) and 4(2) of the Act.
(2) In some cases, it may be desirable to get the offender medically examined in
order to ascertain his mental and physical condition. In such cases, a medicial
examination should be arranged.
FORM IV
[See Rule 27(1)]
Order under subsection (2) of Section 4 of the Probtation of Offenders Act, 1958
The District Probation Officers ....................
Whereas a report under subsection (2) of Section 4 of the Probation of Offenders
address) ................... who has been brought before the Court under
setion .......................... In case No. ..................... you are hereby directed to collect or
arrange to collect the necessry information after making an enquiry and place the same
before this Court on ....................
Seal of the Court Magistrate or Court of Section.
FORM III
[See Rule 17(1)]
Report on Preliminary Enquiries
*Serial No. ....................
(Under the Probation of Offenders Act, 1958)
Magistrate
(Place) .................... C.C. No. .............. 19. ................. Date of hearing ...................
No. ................... 19 Name of Offender ................. Address (Place of residence) :
Age : ............................. Sex and religion :
Personal History
Behaviour and habits (Moral, recreational etc.)
Temperament : (outstanding character and personally traits).
Physical and mental history and present condition.
Leisure time activities
External influences
School record and report of teachers, if available.
Employment history.
Present occupation and wages (give also condition of Labour, leisure etc.)
Report of employer, if any.
Associates.
Contact with social and religious organisation, if any,
Home conditions.
Family history of :
(a) Father ........................
(b) Mother ......................
(c) Stepfather .......................
(d) Stepmother ......................
(e) Brother .......................
(f) Sisters ..........................
(g) Wife .........................
(h) Children .....................
(i) Other interested relations, if any ....................
Economic condition of the family .......................
Any socialagencies, institutions or
individuals interested in family
Report of parents and relation ...................
Attitude of family towards offender and
extent of its influence on him/her
Report of neighbours ....................
Home surroundings and general outlook.
is poverty or unsettled life the cause of offence?
Legal History
Previous institutional record, if any, statement
of the present offence and circumstances in which it was commiitted.
Offender's own reaction to the offence
and his attitude towards possible punishment.
Any special information required by the Court.
Summary
(a) Factual background of offender and his environment and offence.
(b) Diagnosis (offender's attitudes, defencts in character or family, motivations
and factors regarded as casual factors for the offence.)
Improvement.)
(d) Recommendation (if asked for by Court.)
Name and address of the
Probation Officer :
State .................................... District ........................
Headquarter ......................................
Date ............................
Nature of disposal of the case.
offenders, who are charged with trivial offences not involving moral turpitude (e.g.,
where a person disregards the rule of the road or leaves cattle insufficiently attended) and
who can be let off with admonition under Section 3 of the Act or punished with fine.
The period of orders of probation and supervision
7. The Courts are empowered by Section 8 to vary theri original orders and it is
psychologically sound to limit the duration of the order in ordinary cases to one year in
the first instance and on the aplication of the District Probation Officer extend it or
reduce it from time to time to the toal period not exceeding three years. To the average
offender, the prospect of a three year period of probation may prove harsh or damaging,
and a shorter period encourage him to make an effort to reform.
Supervision
8. Whenever it appears to the Court that an offender is likely to make good if placed
under supervision, it should place the offender under the supervision of the District
Probation Officer.
Lists containing the names of (i) Probation Officers appointed by the State
allocated to specified Courts in the district, shall be kept by the District Probation Officer
and made available to the Court whenever necessary.
The Court may appoint a Special Probation Officer under cluase (c) of subsection
(1) of Section 13 of the Act in view of the special circumstanes of particular case, when
no Probation Officer on the lists referred to in cluase (b), subrule (3) of Rule 12 of the
Maharashtra Probation of Offenders Rules, 1966, is available or is considerd sutiable
enough to attend to the case.
In deciding whether a person is suitable for appointmen as a Probation Officer in a
particualr case under clause (c) of subsection (1) of Section 13 or subsecion (2) of
Section 13 of the Act, the Court may take into consideration (a) the genearl attributes
offender, and (c) his ability to follow these rules and to discharge the duties of the
Probation Officer.
Watch to be kept after relaease
9. The duty of the Court does not end when the order has been passed. Where a
supervision order has been passed and the Probation Officer has been appointed, it is
provided inthe rules under this Act that the Probation Officer shall submit monthly
reports in respect of the conduct and behavour of the offender to the Court which passed
the supervison order. The Court will have keep a watch on the progress of the probationer
application of the Probation Officer, vary any of the conditions in the bond or extend or
reduce its duration. The success of the Act depends on the wise exercise of discretion and
proper discharge of their duties by the Court administering it.
Monthaly reports to Courts
10. The following Form II is prescribed for submission of monthly reports by the
Probation Officer to Courts under Rule 16 (3) (a) of the Maharashtra Probation of
Offenders Rules, 1966.
FORM II
[Rules 16(3)(a), 20(2)]
Monthly report on progress of a Probationer
Part I
Order ................. Period of Probation ..........................
PART II
Place of Interview Date
..................... ...............
..................... ...............
..................... ...............
..................... ...............
1. Where the probationer is residing
2. Progress made in any educational training course.
3. What work he is doing and his monthly average earning
4. Savings kept in the Post Office Savings Bank account in his name
5. Probationer's health
6. Remarks on his general conduct and progress.
PART III
7. Any proceedings before Court/District Magistrate for
(a) variation of condition of bond under Section 8(1) or 9(1) of the Act: or
(b) change of residence: vide rule; or
(c) discharge under Section 8(3)
(d) any other matter
8. Probation period completed on Date
9. Result of probation with remarks (if any)
10. Occupation and address after discharge. Probation Officer
To,
District Probation Officer/Court Date of Report
copy to Chief Probation Superintendent.
Address
Supervision over the Probation Officer
the work of the Probation Officer under the Act in the District, which will review from
time to time the arrangements made for enforcement of the Act and make suggestions, if
necessary, for improving the tone of the work.
Rules, 1966 may be used with such modifications as the Court may think fit for the
respective purposes therein mentioned.
_______
FORM V
[See Rule 28(a)]
Bond to keep the peace and to be of good behaviour under subsection (1) of
Section 4 of the Probation of Offenders Act, 1958.
IN THE COURT OF THE
MAGISTRATE
Case No. of 20 ......................
released by the Court of .................. on condition of my entering into a bond to appear
and receive sentence when called upon during a period of ................
I hereby bind myself,
(1) to appear and receive sentence when called upon to do so,
(2) not to commit a breach of the peace or do any act that may occasion a
breach of the peace; and
(3) to be good behavour to Governemtn and all the citizens of India during
the said period and to abide by the instructions of the Probation Officer
during the period of this bond of good conduct. In case of my making default
Rupeees ....................... Dated this ................................ day of ...................
20.
Signature
Executed before me.
Magistrate.
I/we do hereby declare myself/ourselves surety/sureties for the above named
(1) to appear and receive sentence when called upon to do so;
(2) that he will not commit a breach of the peace or do any act that may
occasion a breach of the peace; and
(3) that he will be good behaviour to Government and all the citizens of
India during the said period.
In the case of his making default therein, I/We bind myself/ourselves jointly and
severally to forfeit to Government a sum of Rupees ................
Date this day of 20
_________
FORM VI
Supervision order
Under subsection (3) of Section 4 of the Probation of Offenders Act, 1958
IN THE COURT OF THE MAGISTRATE
Case No. .............. of 20 ............
Whereas ......................... has this day been found guilty of an offence under
section .................
And the Court is satisfied that it is expendient to deal with the said person by
making an order placing him under supervision :
It is hereby ordered that the said person is placed under supervision of ..............
the Probation Offier for a period of ................. subject to the following conditions,
namely :
(1) that he will present himself, within fourteen days from the dae of this order,
before the Probation Officer named herein, and will produce copies of the order and the
bond executed by him :
(2) that he will submit himself to the supervision of the Probation Office or any
other Officer appointed in his place :
(3) that he will
(a) during the period specified herein, keep the Probation Officer advised of
his place of residence and means of livelihood,
(b) reside at .............. for a period of ...............
(4) that he will not quit the district or jurisdition of ..............
(5) that he will no associate with bad characters or lead a dissolute life :
(6) that he will live honestly and peaceably and will endeavor to earn and honest
livelihood ;
(7) that he will not commit any offence punishable by any law in force in India ;
(8) that he will abstain from taking intoxicants ;
(9) that he will carry out such directions as may, from time to time, be given by
the Probation Officer for due observance of the conditions mentioned above.
Dated this day of 20
Jaudge of Magistrate
________
FORM VII
[See Rule 28(e)]
Under subsection (3) of Section 4 of the Probation of Offenders Act, 1958.
IN THE COURT OF THE
CASE NO. ...................... OF 20 .................
Whereas I ................. inhabitant of ...................... have been .................. ordered to
observe the conditions specified in the supervision order made y the Court, I hereby bind
myself as follwos :
(1) that I will accept and fulfill the conditions specified by the Court in such order
for the period specified therin;
(2) that I will resent myself within fourteen days from the date of the supervision
order, before the Probation Offier named in that order and will produce copies of the
order and the bond executed by me;
(3) that I will submit myself to the supervision of the Probation Officer namd in
the supervision order or any other officer appointed in his place;
(4) that I will (a) during the period specified in the order, keep the Proation
Officer advised of my place of residence and means of livelihood (b) reside at .................
for a period of ....................
(5) that I will not quit the said distric or Jurisdiction of without the written
permission of competent authority, viz. .......................
(6) that I will not associated with bad characters or lead a dissolute life;
(7) that I will honestly and peaceably and will endeavour to earn an honest
lifelihood;
(8) that I wil not commit any offence punishable by any law in force in India;
(9) that I will abstain from taking intoxicants;
(10) that I will cary out such irections as may from time to time given by the
Probation Officer with regard to attending hospital, psychiatric clinic and occupational
observance of the conditions mentioned above.
In case of my making default therein, I hereby bind myself to forfeit ..................
to Government the sum of Rs. ................. dated this day of 20..........
Signature
Executed before me.
Magistrate
I/We do hereby declare myself/ourselves surety/sureties for the
abovenamed ....................... that he will observe the conditions specified in the
supervision order and in the bond and in case of his making default therein I/We bind
myself/ourselves jointly and severally to forfeit to Governmet the sum of
Rupees ....................
Dated this day of 20
Signature
Executed before me.
Signature of Magistrate.
13. From the Maharashtra Probation of Offenders Rules, 1966 frame under Section 17
of the Probation of Offenders Act, 1958 (Act 20 fo 1958), brought out under Government
of Maharashtra Notification. Home Department, No. POA1158/83536 XXII, dated the
13th October 1966, published in Governemtn Gazette, Part IVA, dated 20th October, 1966
(pages 671 to 701) the following relevent rules are reproduced :
*17. Presentence report.
(1) For the purpose of Section 14(a) of the Act, the Probation Officer shall,
other circumstances of his famiy, the circumstances in which the alleged
offence was committed and any other facts which the Court has directed
him to inquire into, put down the relevant facts fully and fathfully in the
report, as neatly as may be in Form III. (See Para 4).
(2)The summary of the case shall include and objective statement of facts
along with the Probation Officer's assessment of the case, so as to help the
Court in determining the most suitable method of deaing with the offender
after he is found guilty.
(3)The report shall be treated as “confidential” and delivered to the Court on
the date specified by it; it should be enclosed in a sealed cover, if sent to
the Court or delivered on a date prior to the date of delivery of judgment.”
“19. Duties in relation to the Courts.
(1)The Probation Officer may move the Court before which the probationer is
bound, to vary the conditions of the bond by way of tightening or relaxing
them, as may be required by the conduct of the probationer.
(2) If the Probation Officer considers that the probationer has made sufficient
application to the Court in consultation with the District Probation Officer
under intimation to the Chief Probation Superintendent for discharging the
bond under subsection (3) of the Section 8 of the Act.
behaves in a manner indiating that he is not likely to fulfill the purpose of
Court and the District Magistrate, through the District Probation Officer
for such action as may be considered necessary.
(4) The Probation Officer shall consult the District Probation Officer with
regard to appeal or revision under “Section 11 of the Act”.
14. The Bombay Probation of Offenders Act, 1938, and the rules made thereunder
are no longer in force in any par of the State of Maharashtra. Instead the Probation of
Offenders Act, 1958 (Act No. 20 of 1958) and the rules made thereunder, viz.,
throughout the State of Maharashtra.
In exercise of powers conferred by subsection (3) of Section 1 of the Probation of
Offenders Act, 1958 (Act No. 20 of 1958) the Government of Maharashtra, have notified
the dates on which the said Act came into force in following districts :
SCHEDULE I
District When made Applicable Government
Notification
(1) Aurangabad 1st November, 1966 Government
Notification H.D. No.
POA1058/67967
XXII, dated 22nd
September 1966.
(2) Beed
(3) Nanded
(4) Parbhani
(5) Nagpur
(6) Wardha
(7) Akola
(8) Amaravati
(9) Pune 1st February, 1970 Government
Notification H.D. No.
POA1264/51158
VII, dated 20th
January, 1970.
(10) Nashik
(11) Greater Bombay
(12) Kulaba
(13) Ratnagiri
(14) Osmanabad
(15) Ahmednagar
(16) Solapur
(17) Dhule
(18) Thane
(19) Jalgaon 1st October, 1970 Government
Notification H.D. No.
POA1069/65101
VII, dated 17th
July, 1970.
(21) Sangli
(22) Kolhapur
(23) Yeotmal
(24) Buldhana
(25) Bhandara
(26) Chandrapur 15th August, 1972 Government
Notification H.D. No.
POA1071/38718
VII, dated 7th
August, 1972.
15. Under Section 13(1)(b) of the Probation of Offenders Act, 1958, read with
Rule 24 fo the Maharashtra Probation of Offenders Rules, 1966, the following
institutions have been recongnised by the Government of Maharashtra.
1. The NavaJeevan Mandal, Pune.
2. The Maharashtra State Probation and AfterCare Assocation, Greater
Bombay, Bombay
3. The NavaJeevan Mandal, Nashik.
4. The Marathwada NavJeevan Mandal, Aurangabad.
* * *
CHAPTER XII
The Maharashtra Vexatious Litigation (Prevention) Rules,
1976, made under the Maharashtra Vexatious Litigation
(Prevention) Act, 1971
The following are the Rules framed by the High Court under Section 3B of the
Maharshtra Vexatious Litigation (Prevention) Act 1971
4) Every application by the Advocate General under section 2(1) shall describe the
Advocate General as applicant and the person against whom the applications is made as
opponent.
5) The application shall state the full name of the opponent, his occupation, address
and the proceedings instituted by him, Civil or Criminal and the Courts in which they
were or are instituted together with their results, if any.
6) The application shall be signed and verified by the Advocate General.
7) The application shall be filed on the Appellate Side of the Bombay High Court
and shall be heard by a Division Bench.
8) The application shall be accompanied by three sets of copies of the application
and other documents for the use of the Court and for opponent.
9) The application shall be placed before the Division Bench for orders.
10) Unless the Court considers otherwise, notice of the application should be served
on the opponent calling upon the opponent to show cause.
11) The person so served may appear in person or through an Advocate and show
cause against the proposed action.
12) On consideration of the material placed before the Court, the Court may either
reject the application or pass on order interims of Section 2 (1) of Act.
13) The order passed under Section 2 (1) shall be published as prescribed by the Act
and shall be circulated to such Courts as the court may direct.
section (1) of section 2 shall enter it in a Register to be kept in that behalf.
15) A person against whom an order under Section 2 (1) is made may apply for leave
to institute or continue the processing
i) to a Judge on the Original Side, if the proceedings are to be instituted and
continued on the Original Side of the High Court :
ii) to go high Court on the appellate side, if the proceeding are to be
institute or continued in any other Court in Greater Bombay.
iii)to the District Judge on the District in which the Civil Proceedings are
to be institute or continued : and
iv)to the Sessions Judge in whose division Criminal Proceedings are to be
institute or continued.
16) (a) Every such application for leave to instituted a proceedings, shall be
accompanied by the requisite number of the copies of the application for leave and of the
intended plaint or a proceedings and copies of the documents on which he wants to rely,
for the use of the Court and the opponents.
(b) Every such application shall make the Advocate General and the person
against whom the proceedings is to be instituted or continued as coopponents.
(c) The person makings an application under subsection (i) shall pay the
necessary process fees.
(d) The notices of the application shall be served on the opponents at their
costs of the applicant.
Miscellaneous Applications, and the Rules prescribed for the disposal of such application
shall mutatis mutandis apply to such proceedings.
(b) However, such applications made to the High Court, whether on the
Original or Appellate side, shall be treated as Civil Applications and be disposed of after
such inquiry as may be found necessary.
18) Every order of costs passed on such Civil Applications, whether on the Original
or Appellate side of the High Court shall be executable as a decree in the manner
provided in the Code of Civil Procedure.