Criminal Procedure Code – CrPC

Notes
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Criminal Procedure Code – CrPC

Notes
QUESTION`1:- Discuss the Rights of an arrested
person?
ANSWER:- Cr P C gives powers to the police for arresting a person with
such power Cr P.C also provides rights to an arrested person. Rights of an
arrested are as follows –

1. Right to know the grounds of arrest – Section 50(1) – According to this

provision, every police officer or other person arresting any person without
warrant shall forthwith communicate to him full particulars of the offence
for which he is arrested or any other grounds for such arrest.

In case of Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right
to be notified of grounds of arrest is a precious right of the arrested person.
This allows him to move the proper court for bail, make a writ petition for
habeas corpus, or make appropriate arrangements for his defence.

2. Right to be informed of the provision for bail – Section 50(2) – Section

50(2), provides that where a police officer arrests any person other than a
person accused of a non-bailable offence without warrant, he shall inform
the person arrested that he is entitled to be released on bail and that he
may arrange for sureties on his behalf.

3. Right to be taken to magistrate without delay – Section 57 – of CrPC. It

says that, No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances of the
case is reasonable, and such period shall not, in the absence of a special
order of a Magistrate under Section 167, exceed twenty four hours
exclusive of the time necessary for the journey from the place of arrest to
the Magistrate’s court.

In case of, Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged
upon the State and its police to ensure that this constitutional and legal
requirement of bringing an arrested person before a judicial magistrate
within 24 hours should be met. This allows magistrates to keep a check on
the police investigation. It is essential that the magistrates should try to
enforce this requirement and when they find it disobeyed, they should come
heavily upon the police.

Further, in case of, Sharifbai vs Abdul Razak, AIR 1961, SC held that if a
police officer fails to produce an arrested person before a magistrate within
24 hours, he shall be held guilty of wrongful detention.

4. Right to consult Legal Practitioner – Section 303- Under section 303 it is

mentioned that any person accused of offence before a Criminal Court or
against whom proceedings are instituted under this Code, may have right to
be defended by a pleader of his choice.

5. Right to free legal aid – Section 304 – Section 304 provides that where, in
a trial before the Court of Session, the accused is not represented by a
pleader, and where appears to the Court that the accused has not sufficient
means to engage a pleader, the Court shall assign a pleader for his defence
at the expense of the State. In Suk Das vs Union Territory of Arunachal
Pradesh 1986, SCC, SC has held that non-compliance of this requirement or
failure to inform the accused of this right would spoil the trial entailing
setting aside of the conviction and sentence. The right of an accused to
consult his lawyer begins from the moment of his arrest. The consultation
with the lawyer may be within the presence of a police officer, but not within
the police officer’s hearing. SC also held that it is the duty on all courts and
magistrates to inform the indegent person about his right to get free legal
aid.

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6. Right to be informed about the right to inform of his arrest to his relative
or friend – Section 50 A (1) provides that once the arrested person is
brought to the police station, the police officer must inform a relative or a
friend, or any other person of the arrested person’s choice, about his arrest.
He must also tell the place where the arrested person has been kept.
Further, as per Section 50 A (3) he must note down the name and address
of the person who was informed about the arrest. To make sure that there
is no violation of this right, section 50 A (4)  makes it a duty of the
magistrate to verify that the provisions of this section were complied with.
This allows the arrested person and his well wishers to take appropriate
legal steps to secure his release.

7. Right to be examined by a medical practitioner – While Section 53 allows

a police officer to get the accused examined by a registered medical
practitioner, Section 54(1) gives the accused a right to get himself
examined by a registered medical practitioner. According to Section 54 (1),
when a person who is arrested, whether on a charge or otherwise, alleges,
at the time when he is produced before a Magistrate or at any time during,
the period of his detention in custody that the examination of his body will
afford evidence which will disprove the commission by him of any offence
or which Magistrate shall, if requested by the arrested person so to do
direct the examination of’ the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for
the purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the
arrested accused person must be informed by the magistrate about his
right to be medically examined in terms of Section 54(1).

QUESTION 2:- Elaborate the trial of Warrant of

cases by a Magistrate?
Answer:- There are two different procedures prescribed for trial of warrant
cases by a Magistrate:

1) Procedure of trial of warrant cases instituted on a police report.

2) Procedure of trial of warrant cases instituted otherwise than on a police

report.
Sections 238 to 243 both inclusive relate exclusively to the procedure of
trials in cases initiated on police report whereas sections 244 to 247, both
inclusive, relate exclusively to the procedure in cases initiated otherwise
than on police report. Section 248 relates to both.

A.-Cases instituted on a police report

Section 238 – Compliance with section 207

When in any warrant-case instituted on a police report, the accused appears

or is brought before a Magistrate at the commencement of the trial; the
Magistrate shall satisfy himself that he has complied with the provisions of
section 207 of the act.

A case instituted upon a police report means a case initiated on a charge-

sheet submitted by the police officer in a cognizable case. Any other case
initiated in any other manner is a case initiated otherwise-than on a police
report.

Before proceeding with the case, the Magistrate has to ascertain as to

whether the copies of documents require to be supplied to the accused
according to Section 207 have been complied with. If they have not been so
complied, the Magistrate should get them supplied and then proceed with
the case.

If a warrant case is tried as a summons case, the trial vitiates.

Section 239 – When accused shall be discharged

If, upon considering the police report and the documents sent with it under
section 173 and making such examination of the accused as the Magistrate
thinks necessary and after giving the prosecution and the accused an
opportunity of being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused, and record his
reasons for so doing.

Under Section 239, Magistrate has the power to discharge the accused if
upon the consideration of the documents sent to him under Section 173
and the examination of the accused, if any, he thinks necessary and after
giving an opportunity to the prosecution and the accused being heard, he
considers that the charge against the accused is groundless. If on the
consideration of the documents and after the examination of the accused
and after hearing the prosecution and the defence, the Magistrate is of
opinion that there is a ground for presuming that the accused has
committed an offence triable under this chapter with such Magistrate is
competent to try and which he can adequately punish, he shall frame in
writing a charge.

The examination of the accused under sections 239 and 240 is meant only
to get explanation from the accused of the incriminating circumstances
appearing in the documents sent up under Section 173. It is discretionary
with the Magistrate to examine the accused. It is not obligatory to examine
an accused.

The Magistrate has to record reasons for discharging the accused. Failure
to record the reasons makes the order illegal. The recording of reasons for
discharge is essential so that the Higher Courts may be able to know as to
be of opinion that the charge should not be framed and the accused should
be discharged.

Section 240 – Framing of charge

If, upon such consideration examination and hearing, the Magistrate is of

opinion that there is ground for presuming that the accused has committed
an offence triable under this Chapter, which such Magistrate is competent
to try and which, in his opinion could be adequately punished by him, he
shall frame in writing a charge against the accused.

Then, the charge shall be read and explained to the accused, and he shall
be asked whether he pleads guilty of the offence charged or claims to be
tried.

A Magistrate shall frame a charge if there is a ground for presuming that

the accused has committed an offence, the offence is triable under this
chapter, the Magistrate is competent to try it and the accused can be
adequately punished by him.

A Magistrate can frame a charge in a case where is ground for presuming

that the accused has committed an offence triable under this Chapter, that
is to say, The offence must be punishable to imprisonment for a period
exceeding two years. If the offence which appears to be triable as a
summon case, no charge should be framed, though the accused may be
tried without framing any charge as a summons case, similarly if the case is
triable as a Sessions trial, no charge can be framed by the Magistrate.

A Magistrate can frame a charge under Section 240 only when he is

competent to try the case. A Magistrate may not be competent to try the
case if the offence has been committed beyond the local jurisdiction of his
Court.

The charge framed shall be read over and explained to the accused and he
should be asked whether he pleads guilty or not. Charge shall be read over
the accused and not the pleader. It has been held that the charge may be
explained to the counsel of the accused and he may be allowed to plead or
not to plead on behalf of the accused. But this view is not correct. The
charge has to be explained to the accused and the accused has to plead
guilty or not.

Section 241 – Conviction on plea of guilty

If the accused pleads guilty, the Magistrate shall record the plea and may,
on his discretion, convict him thereon.

If the accused pleads guilty, the Magistrate should record his plea in his
own words and clearly.

The Magistrate has discretion to convict an accused on his plea of guilty.

But the plea of guilty must be clear. It is admission of all the facts on which
the charge is founded and also the admission of guilt in respect of them.
When the accused pleaded not guilty at the time of charge being read over
to him and the Magistrate proceeded to take evidence but afterwards the
accused accepted the guilt, it was held that he could not be convicted under
Section 241.

The plea of the accused must be recorded as much as possible in the very
words of the accused so that the higher courts may determine whether the
plea of the accused really amounted to a confession of the guilt.

Section 242 – Evidence for prosecution

If the accused refuses to plead or does not plead, or claims to be tried or

the Magistrate does not convict the accused under section 241 the
Magistrate shall fix a date for the examination of witnesses.

Provided that the Magistrate shall supply in advance to the accused, the
statement of witnesses recorded during investigation by the police.

The Magistrate may, on the application of the prosecution, issue a

summons to any witnesses directing him to attend or to produce any
document or other thing,

On the date so fixed, the Magistrate shall proceed to take all such evidence
as may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any

witness to be deferred until any other witness or witnesses have been
examined or recall any witness for further cross-examination

When the accused does not plead guilty or claims to be tried or even on
plea of guilty the Magistrate does not convict him, he shall fix a date for the
examination of witnesses. It is for the benefit of the accused that this
provision for fixing a date has been provided. If the Magistrate after the
statement of accused not pleading guilty, straight way proceeds with the
case, the accused may be prejudiced and such proceeding certainly makes
the trial illegal.

On the date so fixed, the Magistrate is bound to take all the evidence by the
prosecution. The provision of Section 242(3) is mandatory. There can be no
doubt that the Magistrate is bound to take all such evidence as may be
produced in support of the prosecution. A Magistrate is not competent to
acquit the accused without taking all the evidence which is offered by the
prosecution. If he does acquit without taking all the evidence, the order is
illegal.

Under section 242(3) which is in very wide term, the Magistrate is bound to
take all such evidence as may be produced in support of the prosecution.
There is ample authority in support of the view that if in the course of the
trial, the prosecution thinks it necessary to file additional documents or
statements of witnesses on which they proposes to rely, the non-supply of
copies does not prevent them from filing the documents or examining the
witnesses.

It is not the bounden duty of the court to compel the attendance of the
witnesses suo moto and examine them under Section 311, even if the
prosecution does not care to produce them. The court may help the
prosecution in securing the attendance of the witnesses. The prosecution
has to give the list of the witnesses and pray for issue of summons and the
summons being infructuous, the prosecution has to approach the Court for
warrant etc. If the prosecution fails to take steps and does not produce
evidence, the court may close the prosecution evidence and proceed further
and may acquit the accused.

The term examination means the examination, cross-examination and re-

examination. Consequently, when a witness is examined by the prosecution
on the date fixed for taking evidence, the witness has to be cross-examined
by the accused. But in suitable cases the Magistrate may postpone the
cross-examination of a witness who has been examined by the prosecution
till other witness or witnesses have been examined. This provision is for the
benefit of the accused to give him opportunity to cross-examine all the
witnesses in continuation.

Section 243 – Evidence for defence

The accused shall then be called upon to enter upon his defence and
produce his evidence; and if the accused puts in any written statement, the
Magistrate shall file it with the record.

If the accused, after he had entered upon his defence, applies to the
Magistrate to issue any process for compelling the attendance of any
witness for the purpose of examination or cross-examination, or the
production of any document or other thing, the Magistrate shall issue such
process unless he considers that such application should be refused on the
ground that it is made for the purpose of vexation or delay or for defeating
the ends of justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the

opportunity of cross-examining any witness before entering on his defence,
the attendance of such witness shall not be compelled under this section,
unless the Magistrate is satisfied that it is necessary for the ends of justice.

The Magistrate may, before summoning any witness on an application

under Sub-Section (2), require that the reasonable expenses incurred by the
witness in attending for the purposes of the trial be deposited in Court.

B.-Cases instituted otherwise than on police report

Section 244 – Evidence for prosecution

When, in any warrant-case instituted otherwise than on a police report the

accused appears or is brought before a Magistrate, the Magistrate shall
proceed to hear the prosecution and take all such evidence as may be
produced in support of the prosecution. The Magistrate may, on the
application of the prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or other thing.

Section 245 – When accused shall be discharged

If, upon taking all the evidence referred to in section 244 the Magistrate
considers, for reasons to be recorded, that no case against the accused has
been made out which, if unrebutted, would warrant his conviction, the
Magistrate shall discharge him.
Nothing in this section shall be deemed to prevent a Magistrate from
discharging the accused at any previous stage of the case if, for reasons to
be recorded by such Magistrate, he considers the charge to be groundless.

Section 246 – Procedure where accused is not discharged.

If, when such evidence has been taken, or at any previous stage of the case,
the Magistrate is of opinion that there is ground for presuming that the
accused has committed an offence triable under this Chapter, which such
Magistrate is competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a charge against the
accused.

The charge shall then be read and explained to the accused, and he shall be
asked whether he pleads guilty or has any defence to make.

If the accused pleads guilty, the Magistrate shall record the plea, and may,
in his discretion, convict him thereon.

If the accused refuses to plead, or does not plead or claims to be tried or if

the accused is not convicted under Sub-Section (3) he shall be required to
stale, at the commencement of the next hearing of the case or, if the
Magistrate for reasons to be recorded in writing so thinks fit, forthwith
whether he wishes to cross-examine any, and if so, which, of the witnesses
for the prosecution whose evidence has been taken.

If he says he does so wish, the witnesses named by him shall be recalled

and, after cross-examination and re-examination (if any), they shall be
discharged.

The evidence of any remaining witnesses for the prosecution shall next be
taken and after cross-examination and re-examination (if any), they shall
also be discharged.

Section 247 – Evidence for defence.

The accused shall then be called upon to enter upon his defence and
produce his evidence; and the provisions of section 243 shall apply to the
case.

C.-Conclusion of trial

Section 248 – Acquittal or conviction

If, in any case under this Chapter in which a charge has been framed, the
Magistrate finds the accused not guilty, he shall record an order of
acquittal.

Where, in any case under this Chapter, the Magistrate finds the accused
guilty, hut does not proceed in accordance with the provisions of section
325 or section 360, he shall, after hearing the accused on the question of
sentence, pass sentence upon him according to law.

Where, in any case under this Chapter, a previous conviction is charged

under the provisions of Sub-Section (7) of section 211 and the accused
does not admit that he has been previously convicted as alleged in the
charge, the Magistrate may, after he has convicted the said accused, take
evidence in respect of the alleged previous conviction, and shall record a
finding thereon:

Provided that no such charge shall be read out by the Magistrate nor shall
the accused be asked to plead thereto nor shall the previous conviction be
referred to by the prosecution or in any evidence adduced by it, unless and
until the accused has been convicted under Sub-Section (2).

Section 249 – Absence of complainant

When the proceedings have been instituted upon complaint, and on any day
fixed for the hearing of the case, the complainant is absent, and the offence
may be lawfully compounded or is not a cognizable offence, the Magistrate
may, in his discretion, notwithstanding anything hereinbefore contained, at
any time before the charge has been framed, discharge the accused.

Section 250 – Compensation for accusation without reasonable cause.

If, in any case instituted upon complaint or upon information given to a
police officer or to a Magistrate, one or more persons is or are accused
before a Magistrate of any offence triable by a Magistrate, and the
Magistrate by whom the case is heard discharges or acquits all or any of
the accused, and is of opinion that there was no reasonable ground for
making the accusation against them or any of them, the Magistrate may, by
his order of discharge or acquittal, if the person upon whose complaint or
information the accusation was made is present, call upon him forthwith to
show cause why he should not pay compensation to such accused or to
each or any of such accused when there are more than one or, if such
person is not present direct the issue of a summons to him to appear and
show cause as aforesaid.

The Magistrate shall record and consider any cause which such
complainant or informant may show, and if he is satisfied that there was no
reasonable ground for making the accusation, may, for reasons to be
recorded, make an order that compensation to such amount not exceeding
the amount of fine he is empowered to impose, as he may determine, be
paid by such complainant or informant to the accused or to each or any of
them.

The Magistrate may, by the order directing payment of the compensation

under Sub-Section (2) further order that, in default of payment, the person
ordered to pay such compensation shall under go simple imprisonment for
a period not exceeding thirty days.

When any person is imprisoned under Sub-Section (3), the provisions of

sections 68 and 69 of the Indian Penal Code (45 of 1860) shall, so far as
may be, apply.

No person who has been directed to pay compensation under this section
shall, by reason of such order, be exempted from any civil or criminal
liability in respect of the complaint made or information given by him:

Provided that any amount paid to an accused person under this section
shall be taken into account in awarding compensation to such person in
any subsequent civil suit relating to the same matter.
A complainant or informant who has been ordered under Sub-Section (2) by
a Magistrate of the second class to pay compensation exceeding one
hundred rupees, may appeal from the order as if such complainant or
informant had been convicted on a trial held by such Magistrate.

When an order for payment of compensation to an accused person is made

in a case which is subject to appeal under Sub-Section (6), the
compensation shall not be paid to him before the period allowed for the
presentation of the appeal has elapsed, or, if an appeal is presented, before
the appeal has been decided; and where such order is made in a case which
is not so subject to appeal the compensation shall not be paid before the
expiration of one month from the date of the order.

The provisions of this section apply to summons-cases as well as to

warrant cases.

QUESTION 3:- Discuss the provisions of tender of

pardon?
SECTION 306-Tender of pardon to accomplice

The purpose of this section is to grant pardon to an accused where a

serious offence is alleged to have been committed by many persons so that
with the help of the evidence of such accused, the offenders may be
punished.

The pardon can be granted when the offences are triable by the Court of
Session or by a court of special Judge appointed under the Criminal Law
(Amendment) Act 1952 and the offences punishable with imprisonment
which may extend to 7 years or with a more severe sentence nor exclusively
triable by a Court of Session. The provision of this section cannot be
enlarged. Pardon can only be tendered with respect to the categories of
offences mentioned in the section and to none others. The jurisdiction to
tender pardon is strictly limited to the offences mentioned in the section.

The Chief Judicial Magistrate or a Metropolitan Magistrate or the

Magistrate of first class may grant pardon with the only difference that the
Chief Judicial Magistrate or a Metropolitan Magistrate may grant pardon in
any case whether they have taken cognizance of it or not. They may grant
pardon at any stage of investigation or inquiry into or trial of the offence
even if the trial is proceeding before the Court of Session. But the
Magistrate of first class can grant pardon only in the cases which he is
enquiring or trying and he can grant pardon only at any stage of the inquiry
or trial. A Magistrate of First Class cannot grant pardon at the stage of the
investigation, nor can do so in a case which is not before him for inquiry or
trial.

The only conditions required for granting pardon are that the accused
should make a thorough and complete disclosure of all the facts within his
knowledge throwing light upon the offence or the offences about which he
promises to give evidence. The Magistrate granting pardon has power to
add any condition. The Magistrate may make a condition that if the
approver fails to make a full disclosure of the facts, he may be prosecuted.

It is discretionary with the Magistrate to grant pardon. But he should

exercise the power in exceptional circumstances. If no approver is
examined as a witness the other accused will go free, pardon may be
granted. When there are a number of witnesses, of fact, the pardon should
not be granted to an accused. In any case no pardon should be granted to
the main offender.

It often happens that the police does not charge sheet one of the accused
and examines him as a witness. The evidence of such a witness is not
irrelevant, but such course should be deprecated.

The Magistrate granting pardon shall explain all the conditions to the
accused. He has to make it clear to the accused that if he does not fulfill
the conditions and if he conceals any material fact or if he tells anything
false, he may be tried. The Magistrate shall record his reasons and should
also mention as to whether the pardon was accepted. The Magistrate has
also to supply a copy of this procedure to the accused if asked for. If the
manner of pardon is substantially complied with, though it is not very
regularly recorded, the procedure is legal.
Before an accused can be examined against a co-accused not only that a
pardon should be tendered to him, but it is necessary that he should accept
it. If the pardon is not accepted by a person, his position remains that of an
accused. The acceptance of pardon need not be in writing. It may be
evidenced by the conduct. A person can be said to have accepted a pardon
only when he sticks to the conditions imposed.

The Magistrate tendering pardon has to record the reason for granting
pardon. The reasons that the accused is granted pardon so that evidence
may be available against the other accused is a good reason. The giving of
the reason is not a condition precedent for granting a pardon. It is only a
matter of procedure and the failure to record reason is only an irregularity
which does not affect the pardon. It has been held that recording of reason
is mandatory provision. If the reasons are not recorded the order of
Magistrate can be quashed.

The expression ‘any person supposed to have been directly or indirectly

concerned in or privy to an offence’ does not necessarily mean a person
against whom a charge sheet has been submitted nor is it necessary that
he should know exactly what crime has been committed. The ground of
granting a pardon is not the extent of complicity of a person in the offence.
The fact that the person concerned does not implicate himself to the same
extent as he does others is no bar in granting a pardon.

The pardon granted is not limited to the offences for which the trial is being
held, rather it extends to all the offences which were so connected with the
offence for which the pardon was tendered. The approver on acceptance of
the pardon is required to make a complete disclosure of all the facts within
his knowledge bearing upon the offence or offences as to which he gave
evidence. Pardon protects the offender from being prosecuted for the
offence for which pardon is granted.

In some cases pardon once granted and accepted cannot be withdrawn.

If the person to whom pardon is tendered has not been released on bail
prior to granting him pardon, he shall be detained in custody until the
termination of the trial. The provision to keep him in custody is mandatory
and neither the Magistrate nor the Judge nor even the High Court can grant
him bail.

Custody, under this section, means a judicial custody. A person who is

granted pardon has not to be sent to police custody. He has to be kept in
judicial lock-up.

Even if the pardon has been refused at one stage, a further request can be
entertained and considered only if fresh or additional facts are placed by
the parties concerned.

A tender of pardon and its acceptance is a matter entirely between court

concerned and the person to whom it is made. The other person against
whom an investigation or enquiry is going on in connection with the same
offence have no right to object to the making the tender of pardon.

Under the old Code, it was held by the Delhi High Court that the order
tendering the pardon was an administrative order and so it was not
revisable. This case was over ruled and the order was revisable. Under the
present law, The order tendering the pardon and order declining to tender
pardon are interlocutory orders and so no revision lies.

There are two ways open to the prosecution to examine a co-accused

against the others without granting him pardon. The public prosecutor may
withdraw from the prosecution against that accused under Section 321, get
him discharged and then examine him. The second course open to the
prosecution is to separate the case of that particular accused from that of
the other accused and then examine him in the case against the other
accused. The police carrying investigation may make an accused a witness
by giving him assurance that he would not be prosecuted. A person liable to
be summoned under Section 319 is a competent witness if not summoned
as an accused under that Section 55.

The release of the approver on bail by the High Court does neither affect
pardon granted to him nor the trial.

SECTION 307-Power to direct tender of pardon

At any time after commitment of a case, but before judgment is passed, the
Court to which the commitment is made may, with a view to obtaining at
the trial the evidence of any person supposed to have been directly or
indirectly concerned in, or privy to, any such offence, tender a pardon on the
same condition to such person.

SECTION 308-Trial of person not complying with conditions of pardon

The prosecution of an approver can be started only on the certificate of the

public prosecutor to the effect that the person has not complied with the
conditions of the pardon by willfully concealing anything essential fact or by
giving false evidence. The sole basis for the prosecution of the approver is
the certificate of the public prosecutor.

The provision of this section pre-supposes that the pardon which had been
tendered was accepted and thereafter the approver has willfully concealed
anything essential or has given false evidence. There must be acceptance
of the pardon and the person must be examined. If the pardon has not been
accepted, the trial of the approver without certificate is illegal and it is also
illegal to try him with other accused.

The approver may be tried for the offence in respect of which pardon has
been tendered, or the other offence which might have been committed in
connection with the same matter and for giving false evidence.

The trial of a person who has not complied with the condition of the
provision must not be held jointly with other accused of the case, but if the
pardon has not been accepted by him, he may be jointly tried.

The trial for perjury cannot be started without the sanction of the High
Court. The High Court is not bound to accord the sanction in each and every
case. The High Court before granting sanction should consider all the
circumstances in the case and decide the main question whether the
previous statement or the confession was true and voluntary. If it is of
opinion that the previous statement and confession was true, the sanction
may be accorded. If the statement at the time of pardon is not true, the
inference may be that the statement was obtained by force and sanction is
not to be granted.

For the trial of an approver only the sanction of the High Court is needed.
Neither an enquiry under Section 340 nor a complaint by the Court under
Section 195 is needed. The approver shall be tried on the charge-sheet
submitted by the police.

At the trial of the approver, the statement at the time of accepting the
pardon, the statement made by the approver under section 164 after
accepting the pardon and the statement at the committal proceeding and at
the trial shall be relevant against the accused at his trial for perjury. The
statement to be admissible under this section should be made after the
acceptance of the pardon.

The accused has a right to plead at the trial that he fulfilled the conditions
of the pardon and if he so pleads, the burden to prove that he did not
comply with the pardon either by willful concealment of essential fact or
giving false evidence, lies on the prosecution.

A Sessions Judge or Magistrate trying an approver has to ask the approver

whether he pleads that he had complied with the conditions of the pardon.
The Judge has to put this question before he examines the witnesses;
failure to follow this procedure would vitiate the trial. Sub-sections (4) and
(5) of Section 308 make it clear that in the trial of an approver who has
forfeited the pardon, the question whether he pleads that the conditions of
pardon have been complied with by him has to be first decided before he is
tried for original offence. It is imperative for the Sessions Courts to ask the
accused whether he pleads that the conditions of pardon have been
complied with before the charge for the original offence is read out. If he so
pleads, a clear finding on the question of compliance or non-compliance of
the conditions of pardon would be condition precedent to his protection for
the original offence after he forfeits his pardon.

The Court has power to record the plea of the approver and for the sake of
justice, it has to record it in full.

The court after recording the plea of the approver will proceed with the trial,
but before passing any judgment, it has to decide whether or not the
approver has complied with the conditions of the pardon.

If the Court comes to the conclusion that the prosecution could not prove
that the approver did not comply with the conditions of the pardon, it has to
pass a judgment of acquittal. Only when the finding is against the approver,
he may convict the accused.

Question4. What do you mean by FIR? In what

circumstances a Magistrate can make an order for
investigation of an offence?   OR What are the
ingredient of FIR? What are the effects of delay in
�ling FIR?
INTRODCTION:-First information report and investigation plays an
important role in administering of criminal justice. It is expected that it
should be recorded with utmost care and caution. It should be recorded
without any delay so that manipulation of facts does not arise. FIR &
Investigation determines that a prima facie case exist against the accused
or not. Sections 154 of Cr.P.C.-1973 described in detail about FIR, but fi
word is not as such written in tis section. 

                              ESSENTIAL ELEMENTS OF F.I.R.

Although the definition of FIR is no given in the Cr.P.C. however it may be as

follows:-

i)               It is information which is given at the first stage to the Police

Officer In- charge of the Police station.

ii)            Information must relate to a cognizable offence.

iii)          It is on the basis of this information that investigation into the

offence commences.

v)             The FIR could be in any type i.e. written or oral. It can also be given
on telephone. Sunil v/s State of MP, 1997.

It is essential that a detailed explanation of the happening should be given

in FIR. In a case of Navratan Mahanto v/s State of Bihar-1980, the court
observed that the prosecution cannot  be dismissed merely on the basis
that FIR does not contains the complete explanation of happening as only
gist of the happening in factual position needs to be mentioned.

Section 154 says- As soon as the Officer-in-charge receives information of

commission of a cognizable offence entry to this effect shall & immediately
be made in the Register maintained for this purpose without delay.

If any information is given orally, it should be recorded and then to read and
obtained the signature of the person giving information.

In a case of State of A.P v/s P. Ramulu, 1993, the court observed that FIR
cannot be refused to be recorded on the ground that the offence was
committed not within the jurisdiction.

There should be no delay in registering FIR (Gnash Bhawan Pated v/s State
of Maharashtra, 1979.).

CIRCUMSTANCES WHEN MAGISTRATE ORDERS FOR   INVESTIGATION: –

Investigation begins with the FIR.  If the FIR is regarding any non-cognizable
offence then such information shall be recorded in the register maintained
for this purpose and the person who is giving the information will be
referred to the Magistrate. In other words investigation cannot be done
without the order of the Magistrate.

Section 155 of the Code of criminal procedure provides that:-

1.    No Police Officer shall investigate a Non-cognizable case without the

order of the Magistrate having power to try such case or commit the case
for trial.

2.    Any Police officer receiving such order may exercise the same powers
in respect of the investigation (except the power to arrest without warrant)
as an Officer–in-charge of a police station may exercise in cognizable case.

3.    Where a case relates to two or more offences of which at least one is
cognizable, the same shall be deemed to be a cognizable case,
notwithstanding that the other offences are non-cognizable.

4.    An investigation in a non-cognizable offence made under the order of

Magistrate is treated as in investigation under chapter-XII and the report will
be submitted to the Magistrate under section 173(2).

In cases of cognizable Offences, there is no need of the orders of the

Magistrate to begin the investigation.  However it has also been made clear
by the Supreme Court  a new provision under the code under section 155(4)
which incorporates a view of Supreme Court that where a case relates to
two or more offences of which at least one is cognizable the case shall be
deemed to be a cognizable case, in-spite of the fact that other offences are
non-cognizable, where there are both cognizable and non-cognizable
offences mixed together the Police Officer can investigate even if there is
single cognizable offence.
https://www.lawordo.com/

5. Discuss the provisions relating to Information to

the police and their powers to investigate.
INTRODUCTION: – Section 154 speaks of information relating to the
commission of a cognizable offence given to an officer-in-charge of a
Police Station. This section has a three-fold object that to inform the
District Magistrate and Supdtt. Of Police who are responsible for
maintaining peace and safety of the District. It is also pertinent to brought it
in the notice of judicial officers before whom the case is ultimately tried.
And the most important to safeguard the accused against subsequent
variations or additions. 

1.    INFORMATION IN CONIZABE CASES:- Every information relating to the

commission of a cognizable offence if given orally to an officer-in-charge of
a Police Station, shall be reduced to writing by him or under his direction
and be read over to the informant.  Every such information, whether given in
writing or reduced to writing as aforesaid, shall be signed by the person
giving it. The officers receiving make the entries of the substance thereof in
the prescribed Register available with him.

2.    Copy of the Information as recorded shall be given forthwith free of

cost to the informant.

3.    Refusal to record the information:- If any officer-in-charge of police

station refuses to record the information the informant may send to
substance of such information to the Supdtt. Of Police concern who further
on his satisfaction will investigate the case himself or direct to his
subordinate.

4.    The information given to Police Office and reduced to writing as

required under the section is called FIR. When any information discosing
cognizable offence is laid before the Officer I/c  of a Police Station, he has
no option but to register the case of that base as held in State of Haryana
v/s Ch.Bhajan Lal-1992.In a case of Gurpreet Singh v/s State of Punjab-
2006:- It was held that merely non-disclosure of the names of witnesses in
the daily diary as well as mortuary register cannot affect the prosecution of
case.

Case State of A.P. v/s V.V. Panduranga Rao-2009: It was held that statement
given on telephone is to be treated as FIR because cryptic telephonic
message of cognizable offence received by Police would not constitute FIR.
The mere fact that the telephonic message was first in point of time does
not by itself clothe it with character of FIR. 

5.    Where FIR is lodged and what Object:- Generally the information about
the offence committed is given to the Police Station of the place concern,
but it does not mean that it cannot be lodged elsewhere.  In a case of
Punati Raube v/s State of A.P.-1993: The police constable refused to record
the compalaint on the ground that the said police station had no territorial
jurisdiction over the place of crime. Any lack of territorial jurisdiction could
not have prevented the constable from recording information about the
cognizable offence and forwarding the same to concern police station.

6.    The object of FIR: the main object of the FIR is to complain of any of the
offence to a Police officer so that criminal law could be applied. Where the
FIR was found o have been written after the inquest report was prepared
the court held that it has lost its authenticity in the case of Balaka Singh v/s
State of Punjab-1975.

7.    IMPORTANCE OF FIR:- On consideration its important from every angle

it is noticed that FIR is a very important from the occurrence of an offence.
It should be given immediately after the offence is committed. The delay in
giving information is viewed with grave suspicion as held in the case of
Modivalappa -1966.  There is no need to give the names of witnesses or
other minute detail.

8.    Duty to register FIR:- In a case of Rajender Singh Katoch v/s Chandigarh
Administration & Others-2008, that although the officer-in-charge of Police
station is legally bound to register a FIR in term of sec.154.  It was also held
in Aleque Padamsee and Others v/s Union of India-2007:- that in case of
inaction of police officials in registering FIR person aggrieved can adopt
modalities contained in sec.190 read with 200 Cr.P.C by laying complaint
before the magistrate concern to take cognizance of offence.

9.    Delay in filing FIR: – Delay in giving FIR can be condoned if there is
satisfactory explanation as held in Apren jospeh v/s State of Kerla-1973.

Whether the delay is so long as to throw a cloud of suspicion on deeds of

the

prosecution case must be depend upon a variety of actors, Case Ram Jog
v/s State of UP-1974. 

10. Delay in lodging FIR in rape cases:- In State Of Himachal Pradesh v/s
Shreekant Shekari-2004: That mere delay in lodging FIR does not anyway
render prosecution version brittle.

11. Powers to investigate:-Under section156 the police is empowered to

investigate into a cognizable offence without order of a Magistrate or
without a formal first information report. If the police do not investigate the
Magistrate can order for the investigation as in case of Abhyanand Jha v/s
Dinesh Chandra-1968. Sec. 156(2) provides that no proceeding of a Police
Officer in any such case shall at any stage be called in question on the
ground that the case was one which such officer was not empowered under
this sec. to investigate, case Hari Singh v/s State of UP-2006. Sec.156(3)
Any magistrate is empowered under sec.190 may order such an
investigation , case Bateshwar Singh v/s State of Bihar-1992.

6. Brief the Jurisdiction of criminal Courts in

inquiries &Trials. OR “Every offence shall ordinarily
be inquired and tried by court within the local limits
of whose jurisdiction It was committed.” Explain the
statement and state its exception.
INTRODUCTION: – A Magistrate within whose local jurisdiction the offence
is committed is competent to take cognizance and to try the case. The
jurisdiction of the Magistrate does not come to an end by transfer of the
locality, where the crime was committed to another district. The court
having jurisdiction to try the offences committed in pursuance of the
conspiracy can try the offence of conspiracy even if it was committed
outside its jurisdiction under section 177.

          It makes it clear that an offence shall be inquired and tried by a court

within the local limits of whose jurisdiction the offence was committed.
B.Patnaik v/s Smt.Binand, 1970, it was held that court decided that
offences shall be tried by a court within the local limits of whose
jurisdiction the offence was committed.

1.    Place of inquiry or trial in certain matters:- Sec.178, when it is uncertain

in which of several local areas an offences was committed. The offence is
committed partly in one local area and partly in another. Where an offence
is continuing one and continues to be committed in more local areas than
one. Then it may be inquired or tried by a court having jurisdiction over any
of such local areas. State of M.P. v/s K.P.Ghiyara-1957.

2. Offence triable where act is done:- An act is an offence by reason of

anything which has been done and of a consequence which has ensued the
offence may be inquired into or tried by a court within whose local
jurisdiction such thing has been done or such consequence has ensued
under sec. 179. Case Lal chand v/s State -1961is suitable example a gang
was created for dacoity in a district but was committed in another district, it
was decided that the case can be tried by the court of any of the two
districts.

3.    Place of trial act is offence by reason of relation to other offence:-

When an act is an offence by reason of its to any other act which is also an
offence or which would be an offence if the door were capable of
committing an offence the offence which is done first may be inquired into
or tried by a court within whose local jurisdiction either act was done, under
sec.180. Munna Lal v/s State of Rajasthan-1964: committing theft and
receiving stolen property, such matter can be tried by a court of any of the
two places.

4.    Place of trial in case of certain offences:-Any offence of being a thug or

murder committed by a thug of dacoity, of dacoity with murder of belonging
to a gang of dacoits or of escaping from custody may be inquired into or
tried by a Court within whose local jurisdiction the offence was committed
or the accused person is found. Under sec.181. Jaswant Singh v/s Emperor,
1918, in a matter of abduction of married woman for the purpose of
unlawful intercourse, it can be tried that court within whose local
jurisdiction the woman was detained.

5.    Offences committed by Letters etc:- Any offence which includes

cheating may if the deception is practiced by means of letters o
telecommunication message be inquired into or tried by any court within
whose local jurisdiction such letters or messages were sent or were
received and may offence of cheating and dishonesty including delivery of
property may be inquired into or tried by a court within whose local
jurisdiction the property was delivered by the person deceived or was
received by the accused person under sec.182. Tekumalla Muneiah v/s
C.B.Ammanamma, 1991: it was a case of bigamy the court held the
complainant could be entertained by the court having territorial jurisdiction
over that place.

6.    Offence committed on journey or voyage:- When an offence is

committed while the person by or against whom or the thing  in respect of
which the offence is committed is in the course of performing a journey or
voyage the offence may be inquired into or tried by a court through or into
whose local jurisdiction that person or thing passed in the course of that
journey or voyage, u/sec.183.

7.    Place of trial for offences triable together:- Sec.184 says, where the
offence committed by any person are such that he may be charged with
and tried at one trial for each such offence by virtue of the provisions of
seec.219 or sec.220 or sec.221. The offence or offences committed by
several persons are such that they may be charged with and tried together
by virtue of the provision of sec.223.Case: Pursottam Dalmiya v/s State of
W.B.-1961.

8.    Offences Committed Outside India:- When offences is committed

outside India by a citizen of India, whether on the high seas or elsewhere or
by a person not being such citizen on any ship or aircraft registered in India,
he may be dealt with in respect of such offence as if it had been committed
at any place in India at which he may be found.

7. DISCUSS THE JOINDER OF CHARGES UNDER

CODE OF CRIMINAL PROCEDURE.
INTRODUCTION:- The object of the rule embodied in the sec. 218 of Cr. P.
C.,  is to ensure a fair trial and to see that the accused is not bewildered or
perplex to confuse by having been asked to defend several unconnected
charges or distinct offences lumped together in one charge or in separate
charges. We will read the rules relating to joinder of charges described in
different part of this section. There is no exception to the rule that there
should be separate charge for each offence.  The detail study of this
section is as under:-

DEFINITION: – For every distinct offence of which any person is accused

there shall be a separate charge and every charge shall be tried separately.
Where the accused person by an application in writing, so desires and the
Magistrate is of opinion that such person is not likely to be prejudiced
thereby, Magistrate may try together all or  any number of the charges
famed against such person.

1.    Effect of Contravention of Sec.218:- The effect of the contravention of

the provisions of this sec. has been considered by the Supreme Court in
following number of cases:- Sushil Kumar v/s Joy Shankar-1971: It was
held that charges under 408 and 477A of IPC could be tried together. In this
case several persons accused on several items of embezzlement were tried
jointly. There was no failure of justice in consequence of the joinder of
charges had occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It
was held, “that the provisions of sec. 218 to 224 would indicate that
separate charge and separate trial for such distinct offence is the normal
rule and joint trial is an exception when the accused have committed
separate offence.”

2.    Failure to Explain injuries on the accused:- When the prosecution fails
to explain satisfactorily the injuries sustained by the accused there are
number of judicial pronouncements on this point. Case State of Gujrat v/s
Bai Fatima-1975: It was held that the accused had inflicted the injuries on
the members of the prosecution party in exercise of the right of self-
defence.

3.    Three offences of the same kind within year may be charged together:-
under section 219 of Cr. P. C. when a person is accused of more offences
than one of the same kind committed within the space of twelve months
from the first to the last of such offences, he may be charged with and tried
at one trial for any number of them not exceeding three. Provisions of
section are only enabling provisions, it applies where offences are of the
same kind but it does not apply where offences are not of the same kind
such as criminal breach of trust and falsification of accounts. Rahmat v/s
State of U. P.-1980.

4.    Trial for than one offence:- If in one series of Acts so connected
together as to form the same transaction more offences than one are
committed by the same person, he may be charged with and tried at one
trial for every such offence as provided under section,220 of the Cr. P.C.
Case Krishna Murthy v/s Abdu Subhan- 1965. Case of Kanshiram v/s
Jhunjhunwala-1935, with the same it was necessary to ascertain whether
they are so connected together as to constitute a whole which can properly
be described as a transaction.

5.    Where it is doubtful what offence has been committed: – Sec.221

provides for the cases where it is doubtful what offence has been
committed. It applies to the cases in which the facts are not doubtful but
the application of law to the facts is doubtful as held in a case of Abdul
Hamid -1935. This sec. applies where the doubt is about the nature of the
offence and not about the facts as held in case Jatinder Kumar v/s State of
Delhi-1992.

6.    When the offence proved included in offence charged: – Sec.222

considered the conviction of minor offence included in the offence charged
in either of two cases, where the offence charged consists of several
particulars and combination is proved but the remaining particulars are not
proved as held in Maung Ba v/s the King-1938.  And where the facts are
proved which reduce the offence charged to a minor offence as held in case
of, Emperor v/sAbdul Wahab-1945.

7.    What persons may be charged jointly:- Under sec.223 joint trail of
several persons is permissible and applies only to trials and not to inquires.
A joint trial of several persons under this section is not vitiated merely by
the facts that at the end of the trial the facts found happen to be different
from those on the basis of which the charges were originally framed as held
in case of Trilokchand  v/s Rex-1949. It was also held in case of A.R.Autulay
v/s R.S.Nayak-1988.

8.    Withdrawal of remaining charges on conviction on one of several

charges: – When a charge containing more heads than one is framed
against the same person and when a conviction has been had on one or
more of them, the complainant or the Officer conducting the prosecution
may with the consent of the Court withdraw the remaining charge or
charges. The court of its own accord may stay the inquiry into or trial of
such charges. Court may proceed with the inquiry into or trial of the charge
or charges so withdrawn.

8. Discuss the provisions of trail before a Court of

Session.
INTRODUCTION: – The procedure of trial of offences before court has been
described in section 225 to sec. 237 of the Criminal Procedure Code-1973.
Here it is important that any matter does not come directly for trial before
the Court of Sessions. Such matter is committed for trial to Court of
Session.  Any matter is committed to Court of Session when it has the
exclusive jurisdiction to try such offence.
1.              CONDUCTION OF TRIAL:- In every trial before a Court of Session,
the prosecution shall be conducted by a Public Prosecutor as laid down in
sec.225 of the code.

2.              OPENING THE CASE FOR PROSECUTION:- When the accused

appears or brought by before the Court in pursuance of a commitment of
the case under section 209 the prosecutor shall open his case by describing
the charge brought against the accused and stating by what evidence he
purposes to prove the guilt of the accused under sec. 226 of Cr. P. C. case
of Hukam Singh v/s State of Rajasthan-2001.

3.              DISCHARGE: – If upon the consideration of the record of the case

and the documents submitted therewith and after hearing the submission
of the accused and the prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the accused he shall
discharge the accused and record his reasons for doing so. As held in case
of T.V.Sharma v/s R.Meeriah-1980. It is called charge arguments; court has
to consider the complete case carefully before giving order to discharge
State of J&K v/s Romeshchandra-1997. These are the provisions of
sec.227.

4.              Framing of charge: – While framing charges court shall only see
that there is a prima facie case against accused or not. At this juncture
there is no need for praising witnesses as held in case of State of M.P. v/s
S.B. Johri-2000.  Where the judge frames any charge, the charge shall be
read and explained to the accused and accused shall be asked whether he
pleads guilty of the offence charged or claims to be tried as provided in
section 228 of Cr. P.C.

5.              Conviction on Plea of Guilty: – If the accused pleads guilty the

judge shall record the plea and may in his discretion convict him thereon.
The plea of guilty only amounts to an admission that the accused
committed the acts alleged against him. It was held in case of Tyron
Nazarath v/s State of Maharashtra-1989. This is more so in case persons
tried jointly when some plead guilty and the others claim to be tried, case of
Bantra Kunjana-1960. These are provisions available in sec. 229 of Cr.P.C.
6.              Date for Prosecution Evidence:- If the accused refuses to plead or
does not plead or claims to be tried or is not convicted under sec.229, the
Judge shall fix a date for the examination of witnesses and may on the
application of the prosecution issue any process for compelling the
attendance of any witness or the production of any document or other
thing. Case Mukipad Mandal v/s Abdul Jabbar-1973, it is the duty of court
to take all necessary steps to compel the attendance of witnesses. The
accused cannot be acquitted on the ground of failure of the witnesses to
appear before the court, under sec. 230.

7.              Evidence for Prosecution:- On the date fixed, the judge shall
proceed to take all such evidence as may be produced in support of the
prosecution sec.231. when any witness appears before the court there shall
be no delay as possible in his examination but if  any delay happens in the
examination of any witness the merely on this ground the prosecution
matter cannot be suspended case of Bunty urf  Guddu v/s State of
M.P-2004.

8.              Acquittal: – If after taking the evidence for the prosecution

examining the accused and hearing the prosecution and he defence on the
point the Judge considers that there is no evidence that the accused
committed the offence the judge shall record an order of acquittal under
sec. 232. The accused can either be convicted or acquittal but not
discharged.

9.              Entering Upon Defence :- Where th accused is not acquitted under

sec.232 he shall be called upon to enter on his defence and adduce any
evidence he may have in support thereof.  It the accused puts in any written
statement the judge shall file it with the record. If the accuse applies for the
issue of any process for compelling the attendance of any witness or
production of any document or thing the judge shall issue such person
unless he considers such application for the purpose of vexation or delay or
for defeating the ends of justice. Case State of MP v/s Badri Yadav-2006.
These are the provisions in sec.233.

10.           Arguments:- When the examination of witnesses for the defence is

complete the prosecutor shall sum up his case and accused shall be
entitled to reply. During his process where any point of law is raised by the
accused the prosecutions mazy with the permission of judge make his
submissions with regard to such point of law under sec. 234.  It is called
arguments.

11.           Judgment:-After hearing both the parties the judge shall give a
judgment in the case under sec.235.Case:Alluddin Mian Sharif Mian v/s
State of Bihar-1989.

12.          Previous Conviction: – If the accused is charge of previous

conviction and the accused does not admit that then judge may take
evidence in respect of the alleged previous conviction and record a finding
thereon under sec. 236.

13.           Procedure in cases instituted under Sec. 199:-Sec.237 of the code

provides the procedure for trial of such matters which have been instituted
under sec.199 (2). Sec.199 (2) provides for prosecution of defamation
matters.  If any matters of defamation is alleged to have been committed
against the President of India, Vice-President, Governor of State,
Administrator of UT, Minister of Union or State or Any other Public servant.
If during trial court finds scope of acquittal he may pass such orders.

9.  For every distinct offence of which any person is

accused there shall be a separate charge and every
such charge shall be tried separately. Explain are
there any exceptions to this rule, if so what?
INTRODUCTION:- Provisions relating to charge are aimed at giving complete
information to the accused about the offence of which he is being charged.
It gives the accurate precise information about the accusations made
against him.  Every charge shall state the offence with which the accused is
charged. The charge shall be written in the language of the Court. The
language of the charge should be specific and clear.

WHAT IS CHARGE: – Sec.2 (b) of Cr.P.C.-1973 provides the definition of

charge but it is neither definition as per dictionary meaning nor it is
directing any meaning.  It only says that, “Charge induces any head of
charge when the charge contains more heads than one.”  Charge is such a
written statement of the information of offence against the accused person
which contains the grounds of charge along-with time, place, person and
things in relation to which offence is committed. The charge is a precise
formulation of the specific accusation of an offence against the accused
person.  Accused prepares his defences on the basis of it.

Components of Charge:- Sec.211 says that:-

1.    Every charge shall state the offence with which the accused is charged.

2.    If the law which creates the offence gives it any specific name, the
same may be described by that name, like theft, robbery, dacoity or murder
etc.

3.    If law does not give any specific name so much of the definition of the
offence must be stated for giving the notice to accused.

4.    The Law and section of the law against which the offence is committed
shall be mentioned in the charge.

5.    The fact that the charge is made is equivalent to a statement that every
legal condition required by law to constitute the offence is fulfilled.

6.    The charge shall be written in the language of the court. Case of
Krishan v/s State of Kerla-1958.The court said that charge should be in
Court’s language.

7.    The previous conviction if any of the accused must be stated in the
charge i.e. place, date and the fact of the offence.

According to Sec. 212:- Particulars as to time place and person:-

        1. The time of commission of the offence be given in the charge.

        2. The place of commission of the offence may also be recorded in

charge.
        3. The person against whom or thing in respect of which it was
committed.

        4.  The manner of committing offence must be stated in the charge u/s
213.

        5.  The words must be of sense of law under which offence is

punishable u/s214.                                                                      

Effect of Errors: – Section 215 of the code says that there should be no
error in stating either the offence or the particulars required to be stated in
the charge, there should also be no omission to state the offence or those
particulars which at any stage of the case as material unless the accused
was in fact misled by such error or omission which may results the failure
of justice. Then such charge shall be considered faulty and the trial on the
basis of such charge shall also be faulty.

Court May alter the charge: Under sec.216, any court may alter or add to
any charge at any time before the judgment is pronounced.

Recall of Witnesses when charge altered:- under section 217, whenever the
charge is altered or added to by the Court after the commencement of the
trial the prosecutor and the accused shall be allowed to recall or re-
summoned and examine the alteration and addition any witness who may
have been examined.

Separate charges for distinct offence: – The object of sec.218 is to ensure

a fair trial and to see that the accused is not bewildered by having been
asked to defend several unconnected charges or distinct offences lumped
together in one charge, case of Aftab Ahmad Khan v/s State of
Hydrabad-1954.

Same offences of same kind within one year may be charged together: –
sec. 219 provides that offences punishable under sec.379 and 380 IPC
shall be deemed to be offences of the same kind. Criminal breach of trust
and falsification of accounts, when the offence is committed by a single
accused and is not applicable where several persons are tried jointly.
Trial for than one offence:- Sec.220 provides If  in one series of acts so
connected together as to form the same transaction, more offences than
one are committed by the same person, he may be charged with, and tried
at one trial for every such offence. Case State of Biahar v/s Simranjit
Singh-1987.

Framing of charge where it is doubtful what offence has been committed:-

sec.221 of the code provides for the framing of charge in those matters
where there is doubt of what offence has been committed. In such matters,
charge shall be framed as follows:-

All offences committed as a result of the nature of Act.

All or any of such offences charged in the alternative with having

committed some one of the said offences. Goverdhan v/s Kanilal-1953.

When offence proved included in offences charged:- When a person is

charged with an offence consisting of several particulars or an offence and
facts are proved which reduce it to a minor will be convicted of the minor,
case of State of Maharashtra v/s Rajendra Jawanmal Gandhi-1997,
Sangarobina Sreenu v/s State  of A.P.-1997. These are the provisions of
Sec.222 of the code.

Withdrawal of remaining charges on conviction on one of several charges:-

Sec.224 of the code says that when a charge containing more heads than
one is framed against he same person and when a conviction has been had
one or more of them the applicant or prosecution with the consent of court
withdraw the remaining charges or court of its own accord may stay the
inquiry or trial.

10. What do you mean by Judgment? What are the

contents of judgment? Discuss the powers of High
court to con�rm death sentence?
INTROUDCTION: – After hearing both the parties the Judge give a judgment
in the case. The judgement in every trial in any criminal court of its own
jurisdiction shall be pronounced in the open court by the presiding officer
immediately after the termination of the trial or at some subsequent time of
which notice shall be given to the parties or their pleaders.

1. Section 353 of the cr. procedure code-1973 provides:-The judgment in

every trial in any criminal court in its own jurisdiction shall be pronounced in
open court by the presiding officer immediately after the termination of the
trial or at some subsequent time of which notice shall be given to the
parties or their pleaders. Case Anthony v/s State-1993.  It was also held in a
case of Yelchuri Manohar v/s State of A.P-2005, that electronic media
cannot provide any guiding factors.

2. Language and contents of Judgment: – That every judgment shall be

written in the language of the Court. It may also contain the point or points
for determination, the decision thereon and the reasons for the decision, as
provided in sec. 354 of the code. Case of Ram Bali v/s State of U.P. -2004.
The language and the contents of the judgment must b self-contained and
must also show that the court has applied its mind to the facts and the
evidence, as held in case of Niranjan V/s State -1978. Failure to signing of
judgment at the time of pronouncing it is only a procedural irregularity
curable as per instructions provided in the code.

3. Judgment of Metropolitan Magistrate: – That instead of recording a

judgment in the manner provided a metropolitan magistrate shall record the
serial number of the case, the date of commission of the offence along-with
the name of the complainant.  The name of the accused person his
parentage and residence mentioning the plea and examination of accused.
The date of final order may also be recorded as provisions laid down in
sec.355.

4. Order for notifying address of previously convicted offender: – Sec. 356

of the code provides that, when any having been convicted by a court in
India of an offence punishable. If such conviction is set aside on appeal or
otherwise such order shall become void. State Govt., can make rules to
carry out the provisions relating to the notification of residence.

5. Order to pay compensation:-The quantum of compensation is to be

determined by taking into consideration the nature of the crime, injury
suffered and the capacity of the convict to pay in case of Manish Jalan v/s
State of Karnatka-2007. These are the provisions of the section 357.

6. Scheme for compensation to victim:-In every state with the coordination

with the central Govt., shall prepare a scheme for providing funds for the
purpose of compensation to the victim or his dependents who have
suffered loss or injury as a result of the crime and who require rehabilitation
under sec.357A.

7. Compensation to persons groundlessly arrested: – Sec. 358 provides

that whenever any person causes a police officer to arrest another person if
it appears to the Magistrate by whom the case is heard that there was no
sufficient ground of causing such arrest. The Magistrate may award such
compensation not exceeding 1000/- rupees as held in case of Parmod
Kumar v/s Golekha1986.

8. Order to pay costs in non-cognizable cases: – Sec.359 says that

whenever any complaint of a non-cognizable offence is made to a court, the
court if it convicts the accused can order to pay the penalty along-with cost
incurred by the complainant and in case of default of payment the accused
can sentence simple imprisonment for a period not exceeding 30 days.

9. Order to release on probation of good conduct after admonition:-Sec.360

says that this section is a piece of beneficent legislation.  It applies only to
first offenders. It enables the court under certain circumstances to release
the accused who has been convicted on probation of good conduct as in a
case of Ved Parkash v/s State of Haryana-1981.

10. Special reasons to be recorded in certain cases: – Where in any case

the court could have dealt with an accused person under the provisions of
offenders Act a youthful offender may tried by any other law for the time
being in force for the treatment training or rehabilitation of youthful
offenders as held in case of Nanna v/s State of Rajasthan-1989, under sec.
361.

11. Court not to alter Judgment:- According to section 362 of the code that
any other law for the time being in force no court when it has signed its
judgment or final order disposing of a case shall alter or review the same
except to correct a clerical or arithmetical error, case of Naresh & others v/s
State of U.P.-1981.

12. Copy of the judgment to be given to the accused and other persons: –
Section 363 says that a copy of the judgment shall immediately after the
pronouncement of the judgment be given to him free of cost, as held in
case of Ladli Parsad Zutsi-1932.

13. Judgment when to be translated: – Sec.364 provides that the original

judgment shall be filed with the record of proceedings and where the
original is recorded in different language from that of court and so requires
it may be translated in to the language of the Court.

14. Court of Session to send copy of finding and sentence to District

Magistrate: – In the case tried by the court of session or a CJM the court or
such magistrate as the case may be shall forward a copy of its or his
finding and sentence if any to the District Magistrate as said in sec. 365 of
the code.

14 Submission of death sentences for confirmation:-Sec.366When a Court

of Session passes a sentence of death the proceedings shall be submitted
to H/C, it cannot be executed unless it is confirmed by H/C. Sec.371
procedure laid down that the Proper officer without delay after the order of
confirmation or other order has been made by H/C send a copy of the order
under seal of H/C duly attested to S.Court

11. Examine the law relating to appeal in criminal

case. Make a difference between Appeal & Revision
in criminal cases.
INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied
from judgment finding and orders of the trial court. Under section 372 of
the Cr.P.C., it is provided that relation to appeal it is necessary to know that
no appeal shall lie from any judgment or order of a criminal court except as
provided by this code or any other law for time being in force, case
Garikapati v/s Subhash coudhari-1957. However the provisions regarding
making an appeal are the following:-

1. Appeal from orders requiring security or refusal to accept or rejecting

surety for keeping peace or good behavior: – Any person who has been
ordered to give security for keeping the peace or for good behavior or who
is aggrieved by any order refusing to accept or rejecting a surety on the
basis of sec.373.

2. Appeals from Convictions: – According to section 374 of code that any

person convicted on a trial by a H/C in its extraordinary original criminal
jurisdiction may appeal to Supreme Court similar any person convicted by
session judge or on a trial held by any other court which sentence or
imprisonment is more than 7 years may appeal to High court. Case Panchi
v/s State of U.P.-1998, In C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: – Under sec.377, the state

Government may in any case of conviction on a trial held by any court other
than a H/C direct the Public Prosecutor to present an appeal against the
sentence on the ground of its inadequacy to Court of Session if the
sentence is passed by the Magistrate or to the H/C if the sentence is
passed by any other Court. When an appeal is filed against the sentence on
the ground of its inadequacy court shall not enhance the sentence except
after giving to the accused a reasonable opportunity of sowing cause
against such enhancement. Case of Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378

the H/C has full power to review at large the evidence on which the
acquittal is based and to reach the conclusion that the order of acquittal
should be reversed as held in case of Mohandas v/s State of MP-1973, but
exercising his power the H/C should give proper weight and consideration
to the view of the trial judge as to the credibility of witnesses, presumption
of innocence in favour of the accused. And a right of the accused to the
benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-2005
case of appeal against acquittal if on same evidence two views are
possible, the one in favour of accused must be preferred.

During the hearing of appeal from the order of acquittal it should be taken
into consideration that there is no miscarriage of justice, case Allahrakha K.
Mansuri v/s State of Gujrat-2002. The order of acquittal cannot be
dismissed merely on the ground that a second approach could have been
applied in the case and it means that the accused could have been
convicted on considering another view a case of Chandra Singh v/s State of
Gujrat-2002.

5.    Appeal against conviction by H/C in certain cases :-Where an H/C has
on appeal reversed an order of manifest on record of acquittal of an
accused person and convicted him and sentenced him to death or to
imprisonment for life or to imprisonment for a term of ten years or more, he
may appeal to the   Supreme Court under sec. 379.

6.    Special right of appeal in certain cases:- In Shingara Singh v/s State of
Haryana-2004, when more persons than one are convicted in one trial and
an appealable judgment or order has been passed in respect of any of such
persons, under section 380.

7.    Appeal to court of session how heard:- Appeal to the court of session
shall be heard by the sessions judges or by ASJ u/s 381.

8.    Petition of appeal:-Every appeal shall be made in the form of a petition

in writing presented by the appellant or his pleader u/s 382.

              

12. DIFFERENCE BETWEEN APPEAL &

REVISION
           APPEAL

1.    Any person convicted on a trail held by H/C may appeal to S/C.

2.    Any person convicted on a trial by a Session judge or on a trial held by

any other court for more than 7 years may appeal to the High Court
3. Any person convicted on a trial held by metropolitan Magistrate or
Magistrate Ist. Class may appeal to Session Judge.

4. If the appellant is in jail he present his petition of appeal through Officer

I/c jail.

5. Pending an appeal by accused person the appellate court shall suspend

the execution of order of sentence & if he is in confinement he be released
on bail.

     REVISION

1.    The correctness, legality or proprietary of any finding sentence or order

of any lower court.

2.    The regularity of any proceedings of such court.

3.    The powers of revision cannot be used through interlocutory orders.

4.    During the hearing of Revision argue of the person applying for revision
should be considered seriously even though it they are too brief. Case Pal
George v/s state-02.

13. What is bail? State the provisions of Bail under

Cr.P.C. Can a person get order to be released on
Bail without judicial or Police custody? Refer case
law.
INTRODUCTION:-It is travesty of justice that many poor accused i.e. ‘little
Indians’ are forced into long cellular servitude for little offences because
the bail procedure is beyond their meagre means and trails don’t
commence and even if they do, they never conclude. Our bail system
suffers from a property oriented approach which means to proceed on the
erroneous assumption that risk of monetary loss is the only deterrent
against fleeing from justice.

What is bail?-When any person who is accused of any offence other than
non-bailable offence, he shall be released on bail under sec.436 of the code
provided he has been arrested or detained without warrant by an Officer I/C
of Police station or he appears or is brought before a court and he must be
prepared any time whine in the custody or at any stage of the proceeding
before a court.

However the following are the provisions of getting Bail under Cr.P.C.
Offences can be classified into two classes on the basis of bail:-

i)                Bailable offences: – Bailable offences are of general nature and

in these offences it is right of accused to be released on bail. Sec.436 of
Cr.P.C. pertains to Bailable offences.

ii)              ii) Non-Bailable offences: – These offences are of severe nature

and bail cannot be claimed as right in them. In such cases bail depends
upon the discretion of the court. Sec. 437 relates to Non-bailable offences.

1.    Grant of Bail in Non-bailable offences: – Sec. 437 provides that when
any person accused of or suspected of commission of any non bailable
offence is arrested or detained without warrant by an Officer I/C of a Police
station or appears or is brought before a court other than the High Court or
court of Session he may be released on bail. Thus section 437 empowered
a Magistrate to take bail in non bailable offences. The provision of this
makes it clear that bail in non bailable offences depends upon the
discretion of the court.

i)                When bail shall be granted: – sec.437 (1) lays down two situation
in which bail shall not be granted by magistrate:1) reasonable grounds for
believing that he has been guilty of offence punishable with death or
imprisonment for life. 2. When offence is cognizable and he had been
convicted with death, imprisonment for life or imprisonment for 7 years or
more or he has been convicted on two or more occasion.

ii)              There are exceptions to receive bail:- this section also provided
with few exceptions where magistrate can receive bail in following cases:-

a) Where the accused is under the age of 16 years.

b) If she is a woman.

c) Sick or infirm

Thus in the above cases the bail application can be accepted even though
the accused in guilty of offence punishable with death or imprisonment for
life or has been convicted earlier. Case Venkataramanappa v/s State of
Karnatka-1992.

Conditions for Bail:- Under sec. 437(3) that where a person accused or
suspected of the commission of an offence punishable with imprisonment
which may extend to 7 years or more or for an offence, abetment of  or
conspiracy or attempt to commit any such offence is released on bail, the
court may impose any condition which the court considers necessary, as in
the case of Gurbaksh Singh v/s State of Punjab-1980:-

·                 In order to ensure that such person shall attend in accordance

with the conditions of the bond executed under this chapter.

·                 That such person shall not commit an offence similar to an

offence of which he is accused or suspected.

·                 That otherwise in the interest of Justice.

Can a person get order to be released on Bail without judicial or Police

custody:-

Where any person has reason to believe that he may be arrested on

accusation of having committed a non-bailable offence he may apply to the
High Court or the Court of Session for a direction under sec. 438 that in the
event of such arrest he shall be released on bail.

*It was held in Adri Dharam dass v/s State of W.B-2005; it was held that it is
exercised in case of an anticipated accusation of non-bailable offence. The
object of this section is that the moment a person is arrested if he has
already obtained an order from High court of Court of Session he shall be
released immediately on bail without being sent to jail.
*It was also held in Vaman Narain Ghiya v/s State of Rajasthan-2009,
direction u/s 438 that the applicant shall be released on bail whenever
arrested for whichever offence whatsoever such a blanket order should not
be passed.

It was further observed that direction under sec.438 is to be issued at pre-

arrest stage, with some conditions:-

i) That the person shall make himself available for interrogation by a Police
officer as and when required. ii) The person shall not directly or indirectly
make any inducement, threat or promise to any person acquainted with the
facts of the case. iii) That the person shall not leave India without the
previous permission of the court. iv) If such person is thereafter arrested
without warrant by Police on such accusation and is prepared either at the
time of arrest or at any time while in the custody of police station to give
bail, he shall be released on bail.

14:-Discuss the provisions relating to revision to

criminal cases. Can High Court exercising revision
powers?
INTRODUCTION: – Revision is also a judicial remedy which has been
mentioned in sec.397 of the code.  The main object of revision is to
examine the purity, validity, relevancy or regulation or any order, finding or
sentence. This section gives powers to High Court and the Session Judge
to call for and examine the record of any proceeding before any inferior
Criminal Court within its or his local jurisdiction. The followings are the
provisions regarding when the revision shall be done:-

1. Calling for records to exercise powers of revision: – The High court or the
Session Judge may call for and examine the record of any proceeding
before any inferior criminal court of his jurisdiction for the purpose of
satisfying as to the correctness, legality or propriety of any finding,
sentence or order recorded or passed, u/s 397 of the code. Case Johar &
Others v/s Mangal Prasad and another-2008, it was held that trial court is
not found to be passed without considering relevant evidence or by
considering irrelevant evidence.
In a case of Badri Lal v/s State of M.P.-1989: The powers under this section
are undoubtedly wide and the Session Judge can take up the matter suo
motu, it must be seen that the criminal law is not used as an instrument of
private vengeance.

Kuldeep Singh v/s State of M.P.-1989: It was held that the order framing
charge could not be lightly interfered with in revision.

In vinod kumar v/s Mohawati-1990: That the court of Session has similar
powers as of High Court in revision and as the High Court is authorized to
take additional evidence in revision.

In Gram Sabha Lakhanpur v/s Ram Dev-1993:- It was held that the
complainant may or may not have a legal right of being heard but the rule of
prudence and natural justice requires that the aggrieved party must be
afforded an opportunity of hearing.

In a case of Mahavir singh v/s Emperor-1944: The regularity of any

proceedings of such inferior court where the finding sentence or order is
illegal or improper and where the proceedings are irregular.

Case of T.B.Hariparsad v/s State-1977, it was held that the powers of

revision cannot be used through interlocutory orders passed in any appeal
inquiry, trial or other proceedings under sec. 397(2).

In a case of Paul George v/s State-2002, it was held that during the hearing
of Revision argue the person applying for revision should be considered
seriously even though if they are too brief.

2.      Order of Inquiry:- Sec. 398 of the code provides powers of issuing
order of inquiry to High Court or court of Session. Accordingly on examining
any record under sec.397 or otherwise the High Court or Session Judge
may direct CJM by himself or by any of Magistrate subordinate to him to
make inquiry of any complaint which has been dismissed under sec.203 or
the case of any person accused of an offence who has been discharged.

3. Powers of Revision of Court of Session: – Sec.399 provides powers of

revision to court of session in the case of any proceeding the record of
which has been called for by himself. The session judge may exercise all or
any of the powers which may he exercised by the High Court.

Where an application for revision is made by or on behalf of any person

before the session judge the decision of the session judge  shall be final
and no further proceedings by way of revision a the instance of such person
shall be entertained by the High Court or any other court. These powers of
revision have been provided to the Addl. Session Judge under sec.400.

4. Powers of Revision of High Court: – Sec.401 of the code provides powers

of revision to High Court that in case of any proceeding the record of which
has been called by itself or which otherwise comes to its knowledge, the
High Court may exercise any of the powers conferred on a court of appeal
by sec. 386, 389, 390 and 391 or on court of session by sec. 307. Thus
during revision High Court shall be able to exercise all powers which an
appellate court can do. In case of Vimal Singh v/s Khuman Singh-1998:
Supreme Court restricted the area of revision generally the order of
acquittal is not interfered. Powers of revision can be exercised in following
situations:-i)Where severe illegality has occurred by trial court.

ii) Where the order of trial court has failed to provide justice.

iii) Where the trial court has tried a case which fall beyond its jurisdiction.

iv) Where the trial court has stopped taking evidence unlawfully.

Here it is pertinent to mention that any party has applied for revision
believing that no appeal lies there but an appeal lies there then the court
shall consider such application for appeal in the interest of justice u/s
401(2). The order of acquittal cannot be reversed into an order of conviction
in revision as held in case of Singher Singh v/s State of Haryana-2004, u/s
401(3).

5. Power of High Court to withdraw or transfer revision cases:-whenever

one or more persons convicted at the same trial makes an application to
High Court for revision. The High Court shall direct that the applications for
revision made to it be transferred to the Session Judge who will deal with
the same as if it were an application made before him, under sec. 402 of
this code.

6.Copy of the order to be send to lower court:- Sec. 405 of the code
provides that where any case is revised by High Court or court of session, it
or he shall in the manner provided by sec.388, certify its decision or order to
the court of by which the finding, sentence or order revised was recorded or
passed and the court to which decision or order is so certified shall
thereupon make such orders as are confirmable to the decision so certified
and if necessary record shall be amended in accordance there with.

15.Discuss the provisions of Judgment. Can court

alter its own Judgment?
INTRODUCTION: – It must contain the judgment comes out from every trial
in any criminal court of its original jurisdiction which is to be pronounced in
open court by the presiding officer immediately after the termination of the
trial. Judgment can be delivered in whole or the operative part of the
judgment and explaining the substance of the judgment in a language
which is understood by the accused. The provisions however are as under:-

1.    Contents of Judgement:- Section 353 of cr.P.C-1973 provides that the

judgement in every trial in any criminal shall be pronounced in the open
court by the presiding officer just after the completion of the trail or at
some subsequent time which notice shall be given to the parties or their
advocates. It can be delivered as a whole of the judgement or can by
reading out the of judgement.  If may also be byreading the operative part
of the judgement in such language which easily be understood by the
accused or his advocate.

a)Each and every page of judgment when it is made should be singed,

mentioning the date of delivery of the judgment in open court.

b) No judgment which is delivered by any criminal court shall be deemed to

be invalid by reason only of the absence of any party or his advocate on the
day or place notified for the delivery of the judgment.
c) As soon as the judgment is pronounced a copy of the same immediately
be made available for the perusal of the parties free of cost.

d)If the accused is in the custody he shall be brought up to hear the

judgment pronounced. And if the accused is not in custody he shall be
required by the court to attend to hear the judgement pronounced.

e) Where there are more accused than one and one or more of them do not
attend the court on date on which the judgement is pronounced. Presiding
officer to avoid delay in the disposal of the case pronounce the judgement
even their absence.

2.Language & contents of Judgement: – According to sec.354 the

judgement should be written in language of court which contains points for
determination, the decision thereon and the reasons for the decision. If it be
a judgement of acquittal, shall state the offence of which accused is
acquittal and direct that he be set at liberty. Sec.354(3) when all the
murderers are to be sentenced with death sentence will become a dead law
as held in a case of Muniappan v/s State of Tami Nadu-1981.

3 Order for notifying address of previously convicted offender: – When any

person having been convicted by a court in India of an offence punishable
which relates to criminal intimidation with imprisonment for a term of three
years or upwards is again convicted of any offence punishable Court may
order that his residence and any change of such residence after release be
notified. Such rules may provide for punishment for the breach thereof,
under sec.356.

4.Order to pay compensation: – When a court imposes a sentence of fine or

a sentence including sentence of death of which fine forms a part the court
may at the time of passing judgement the whole or any part of fine
recovered to be applied. In the payment to any person of compensation for
any loss or injury caused by the offence when compensation is in the
opinion of the court recoverable by such person in a civil court. At the time
of awarding compensation in any civil suit relating to the same matter the
court shall take into account any sum paid or recovered ass compensation
on the provisions laid down in this sec.357, in case of Mangilal v/s State of
MP-2004. In Sube singh v/s State of Haryana-2006, is a fit case to award
compensation.

5. Special Reasons to be recorded in certain cases:- As per provisions laid

down in sec.361 of cr.P.C.,where in any case the court could have deal with
an accused person under sec.360 under the provisions of probation of
offenders Act or a young offender under children act or any other law for
the time being in force for the treatment, training or rehabilitation of young
offenders has not done so. It must be recorded in judgement giving special
reasons for having not done so, as held in a case of State of Himachal
Predesh v/s Lat Singh-1990.

6. Court not to alter judgement:- Provisions lays in the sec. 362 or by any
other law for the time being in force, no court when it has signed the
judgement or final order disposing of a case shall alter or review the same
except to correct clerical or arithmetical error. In case of Naresh & others
v/s State of U.P.-1981.

7. Copy of the Judgement to be given to the accused & other persons:-

When the accused is sentenced to imprisonment a copy of the judgement
shall immediately after the pronouncement of the judgement be given to
him free of cost. In case of Ladli Prasad Zutshi v/s State of Allahbad-1931,
it was held that even public has a right to obtain a copy of the judgement of
any criminal court. This has been provided in sec. 363 of Cr.P.C.-1973.

8. Judgement when to be translated: – As per instructions u/s 364 it is said

that the original judgement shall be filed with the record of the proceedings
and where the original is recorded in a language different from that of the
court and the accused so requires a translation thereof into the language of
the court shall be added to such record.

9. Court of Session to send copy of finding and sentence to District

Magistrate:- The cases tried by the court of Session or a CJM the court or
such Magistrate shall forward a copy of its or his finding and sentence if
any to the District Magistrate within whose local jurisdiction the trial was
held as provided in sec. 365 of Cr.P.C.-1973.
16: Analyse the provisions of grant of Anticipatory
bail. Can anticipatory bail be allowed in Murder
case? If so when?
INTRODUCTION: – Anticipatory bail has an important place in the series of
Bail. Its main object is to protect the innocent persons from arrest under
sec. 438 of the criminal procedure code-1973 lays down the provisions
regarding grant of anticipatory bail.

·     What is Anticipatory Bail: – In-spite of the fact that the Cr.P.C., has not
defined Anticipatory Bail but it means that when a person has a reason to
believe that he may be arrested on accusation of having committed a non-
bailable offence, he may apply to High Court or to the court of Session that
in the event of such arrest he shall be released on bail at that time it is
anticipatory bail. It is also called Apprehension Bail on the basis of
provisions laid down in sec. 438 of cr.P.C.

·     Object of the Anticipatory Bail:- The object of Anticipatory bail is to

protect a person from arrest. A person against whom a warrant of arrest
has been issued shall first be arrested kept in custody for few days and
then released on bail, it means where there is no purpose for the arrest he
shall not be arrested.

·     When anticipatory Bail would be Accepted:- Section 438(1) says that,

“when any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence, he may apply to the
High Court or court of Session for a direction under this sec.438(1) and
court if thinks it fit, can direct that in event of such arrest he shall be
released on bail.” Case of Gurbaksh Singh v/s State of Punjab-1980, he was
not granted anticipatory bail merely on fear of arrest. In a similar case of
Ashok kumar v/s State of Rajasthan-1980, that anticipatory bail should not
accepted until there is a definite fear of arrest and such fact has come
before the court.

It is pertinent to mention here that reason to believe does not mean mere
fear, i.e. mere ‘fear’ is not sufficient cause. Grounds on which belief is based
must be capable of being examined.
·     Who shall accept the Anticipatory Bail:- Sec. 438 (1) that the following
authorities may accept the anticipator bail application:

i.                 High Court        ii. Court of Session         

That any accused of an offence and in custody be released on bail on

acceptance of bail application in the above said courts u/s 439 of Cr.P.C.

·     Conditions of Grant Anticipatory Bail:-Court can impose reasonable

conditions for grant of anticipatory bail. Those conditions have been
mentioned in section 438(2).  When the High Court or Court of Session
make a direction with some conditions in the light of the facts of the
particular case as it may think fit for bail:-

a. That the person shall not leave India without previous permission of the
court.

b. That person directly or indirectly make an inducement threat or promise

to any person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the court or to any police Officer.

c. That the person shall make himself available for interrogation by a police
officer as and when required.

d. That any such other condition as may be imposed under sec.437 if the
bail is granted under this section.

ANTICIPATORY BAIL IN MURDER CASE: – There is no set principle fixed for

grant of anticipatory bail. It is basically depends upon the facts and
circumstances of every case and the nature of the case. Generally the
anticipatory bail is not to be granted in the matters like murder, unnatural
death, dourly death.

A case if SamunderSingh v/s State of Rajasthan -1987, the court held that
the anticipatory bail cannot be accepted in dowry death cases especially
where father-in-law and mother-in-law caused unnatural death of the
daughter-in-law.
    Similarly refusing to grant of anticipatory bail in the matters of atrocities
to schedule tribe and schedule caste was held to be constitutional in a case
of State v/s Ram kishore Batolia-1995.

Anticipatory bail has also been refused in the matters of FERA, a case of
Dukhishyam Venupanni v/s Arun Kumar Bajoria-1998.

Even the facts mentioned above the anticipatory bail can be granted in
Murder cases on the basis of following circumstances:-

i)When there is no apprehension about the absconding of the accused.

ii) When there is no apprehension of inducing or enticing witnesses by the

accused.

iii) When there is no apprehension of the accused for moving abroad.

iv)Where the offence is not the severe or deadly nature.

                             HEARING OF PROSECUTION

The prosecution must be provided an opportunity of hearing while

considering the anticipatory bail as held in the case of State of Assam v/s
R.K.Krishankumar-1998.

UNIT-V

INTRODUCTION:-Offences can be classi�ed into two

classes on the basis of bail:

Bailable offences: – Bailable offences are of general nature and in these

offences it is right of accused to be released on bail. Sec.436 of Cr.P.C.
pertains to Bailable offences.

Non-Bailable offences: – These offences are of severe nature and bail

cannot be claimed as right in them. In such cases bail depends upon the
discretion of the court. Sec. 437 relates to Non-bailable offences, under
section 437 and 439 relates to non-bailment offence.

Grant of Bail in Non-bailable offences: – Sec. 437 provides that when any
person accused of or suspected of commission of any non bailable offence
is arrested or detained without warrant by an Officer I/C of a Police station
or appears or is brought before a court other than the High Court or court of
Session he may be released on bail.

Thus section 437 empowered a Magistrate to take bail in non bailable

offences. The provision of this makes it clear that bail in non bailable
offences depends upon the discretion of the court.

When bail shall be Granted:- Sec. 437(1) of the code lays down the
following situations in which bail shall not be granted by the Magistrate:-

i)                When the Magistrate believes that there are reasonable grounds
of guilty of offence punishable.

ii)              If person has been previously convicted of an offence punishable

on two or more times.

                             CONDIIONS FOR BAIL

1 Sec. 437(3) of the code provides that where a person accused or

suspected of the commission of an offence punishable  which may extend
to seven year or more or of an offence  defined in IPC and any such offence
the accused is released on bail the court however may impose any
condition which the court considers necessary:-

1.    That such person shall attend in accordance with conditions mentioned
in the bond executed by him.

2.    Such person shall not commit an offence of the similar to an offence of
which he is accused or is suspected.

                                  ARREST OF A PERSON
Introduction: – Generally, a person is arrested by the order of the magistrate
or by a warrant. A police officer cannot arrest a person arbitrarily or without
the order of magistrate or without warrant. But this rule has few exceptions
to it which means that under certain circumstances a person can be
arrested without the order of the magistrate or without warrant.

Arrest without warrant:- Sec. 41 of the Criminal Procedure Code 1973

provides that a police officer can arrest a person without the orders or
warrant of the magistrate in following situations:

(8)          When any person has been concerned in any cognizable offence or
against whom a reasonable complaint has been made or credible
information has been received or a reasonable suspicion exists. Of his
having been so concerned.

(9)          When any person has in his possession without lawful excuse any
implement of house-breaking.

(10)     When any person in whose possession anything is found which may
reasonably be suspected to be stolen property and who may reasonably be
suspected of having committed an offence with reference to such things.

(11)     When any person obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape from lawful custody.

(12)     When any person is reasonably suspected of being a deserter from

any of the armed forces of the union.

(13)     When any person being a released convict, commits a breach of any
rule made under sub-section (5) of section 356;

(14)     When for any persons arrest any requisition, whether written or oral,
has been received from another police officer, provided that the requisition
specifics the person to be arrested.

Thus, in this way a police officer under sec 41(1) can arrest any person
without the order or warrant of a magistrate.
                                           CHARGE
INTRODUCTION: – The object of the rule embodied in the sec. 218 of Cr. P.
C.,  is to ensure a fair trial and to see that the accused is not bewildered or
perplex to confuse by having been asked to defend several unconnected
charges or distinct offences lumped together in one charge or in separate
charges. We will read the rules relating to joinder of charges described in
different part of this section. There is no exception to the rule that there
should be separate charge for each offence.  The detail study of this
section is as under:-

DEFINITION: – For every distinct offence of which any person is accused

there shall be a separate charge and every charge shall be tried separately.
Where the accused person by an application in writing, so desires and the
Magistrate is of opinion that such person is not likely to be prejudiced
thereby, Magistrate may try together all or  any number of the charges
famed against such person.

1.    Effect of Contravention of Sec.218:- The effect of the contravention of

the provisions of this sec. has been considered by the Supreme Court in
following number of cases:- Sushil Kumar v/s Joy Shankar-1971: It was
held that charges under 408 and 477A of IPC could be tried together. In this
case several persons accused on several items of embezzlement were tried
jointly. There was no failure of justice in consequence of the joinder of
charges had occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It
was held, “that the provisions of sec. 218 to 224 would indicate that
separate charge and separate trial for such distinct offence is the normal
rule and joint trial is an exception when the accused have committed
separate offence.”

2.    Failure to Explain injuries on the accused:- When the prosecution fails
to explain satisfactorily the injuries sustained by the accused there are
number of judicial pronouncements on this point. Case State of Gujrat v/s
Bai Fatima-1975: It was held that the accused had inflicted the injuries on
the members of the prosecution party in exercise of the right of self-
defence.
3.    Three offences of the same kind within year may be charged together:-
under section 219 of Cr. P. C. when a person is accused of more offences
than one of the same kind committed within the space of twelve months
from the first to the last of such offences, he may be charged with and tried
at one trial for any number of them not exceeding three. Provisions of
section are only enabling provisions, it applies where offences are of the
same kind but it does not apply where offences are not of the same kind
such as criminal breach of trust and falsification of accounts. Rahmat v/s
State of U. P.-1980.

Trial for than one offence:- If in one series of Acts so connected together as
to form the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one trial for every such

                         APPEALS & ITS LIMITATION

PERIOD
INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied
from judgment finding and orders of the trial court. Under section 372 of
the Cr.P.C., it is provided that relation to appeal it is necessary to know that
no appeal shall lie from any judgment or order of a criminal court except as
provided by this code or any other law for time being in force, case
Garikapati v/s Subhash coudhari-1957. However the provisions regarding
making an appeal are the following:-

1. Appeal from orders requiring security or refusal to accept or rejecting

surety for keeping peace or good behavior: – Any person who has been
ordered to give security for keeping the peace or for good behavior or who
is aggrieved by any order refusing to accept or rejecting a surety on the
basis of sec.373.

2. Appeals from Convictions: – According to section 374 of code that any

person convicted on a trial by a H/C in its extraordinary original criminal
jurisdiction may appeal to Supreme Court similar any person convicted by
session judge or on a trial held by any other court which sentence or
imprisonment is more than 7 years may appeal to High court. Case Panchi
v/s State of U.P.-1998, In C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: – Under sec.377, the state

Government may in any case of conviction on a trial held by any court other
than a H/C direct the Public Prosecutor to present an appeal against the
sentence on the ground of its inadequacy to Court of Session if the
sentence is passed by the Magistrate or to the H/C if the sentence is
passed by any other Court. When an appeal is filed against the sentence on
the ground of its inadequacy court shall not enhance the sentence except
after giving to the accused a reasonable opportunity of sowing cause
against such enhancement. Case of Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378

the H/C has full power to review at large the evidence on which the
acquittal is based and to reach the conclusion that the order of acquittal
should be reversed as held in case of Mohandas v/s State of MP-1973, but
exercising his power the H/C should give proper weight and consideration
to the view of the trial judge as to the credibility of witnesses, presumption
of innocence in favour of the accused. And a right of the accused to the
benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-2005
case of appeal against acquittal if on same evidence two views are
possible, the one in favour of accused must be preferred.

During the hearing of appeal from the order of acquittal it should be taken
into consideration that there is no miscarriage of justice, case Allahrakha K.
Mansuri v/s State of Gujrat-2002. The order of acquittal cannot be
dismissed merely on the ground that a second approach could have been
applied in the case and it means that the accused could have been
convicted on considering another view a case of Chandra Singh v/s State of
Gujrat-2002.

                                        COMPLAINT CASE
DEFINITION: – Sec. 200 says, that the preliminary procedure which a
Magistrate shall follow on receiving a complaint.  It is obligatory to examine
the complainant and the witnesses and a summary dismissal without them
is not legal. The substance of such examination shall be reduced to writing
and shall be signed by the complainant and the witnesses and also by the
Magistrate. If a public servant acting or purporting to act in the discharge of
his official duties or a court has made the complaint or the magistrate
makes over the case for inquiry or trial to another Magistrate under
sec.192.

1.    Procedure by Magistrate not competent to take cognizance of the case:

If a complaint made to a Magistrate who is not competent to take
cognizance of the offence he shall return it for presentation to the proper
court with an endorsement to that effect or where the complaint is not in
writing then he will direct the complainant to the proper court as provided in
sec.201 of Cr.P.C.Case of Rajender Singh v/s State of Bihar, 1989.

2.    To Postponement of issue of Process:- Sec.202 of the code provided

that where it appears to the magistrate that the offence complained is
triable exclusively by the court of Sessions or where the complaint has not
been made by a court unless the complainant and the witnesses present
have been examined on oath under sec.200.  If an investigation is made by
a person not being a Police officer he shall have for that investigation all the
powers conferred by this code on an officer in charge of a police station
except the power o arrest without warrant. Sec. has provided to ascertain
the following: i) to ascertain the facts constituting the offence.

ii) To prevent abuse of process resulting in wastage of time of the court and
harassment to the accused.

iii) To help the magistrate to judge if there is sufficient ground for calling the
investigation and for proceeding with the case. Case: Balraj Khanna v/s
Motiram-1971.

3.    Dismissal of Complaint: – A Magistrate may dismiss a complaint if

after considering the statement on oath of the complainant and of the
witnesses and the result of inquiry or investigation under sec.202. But
where there is sufficient ground for preceding the Magistrate cannot
dismiss the complaint under sec.203 of the code. If he finds that no offence
has been committed, if he distrusts the statement or if he distrusts the
complainant may direct for further inquiry. In such cases he may refuse to
issue process. Case Sulab Chandra v/s Abdula-1926. These are the
provisions under sec.203 of Cr.P.C.

                          ANTICIPATORY BAIL
INTRODUCTION: – Anticipatory bail has an important place in the series of
Bail. Its main object is to protect the innocent persons from arrest under
sec. 438 of the criminal procedure code-1973 lays down the provisions
regarding grant of anticipatory bail.

What is Anticipatory Bail: – In-spite of the fact that the Cr.P.C., has not
defined Anticipatory Bail but it means that when a person has a reason to
believe that he may be arrested on accusation of having committed a non-
bailable offence, he may apply to High Court or to the court of Session that
in the event of such arrest he shall be released on bail at that time it is
anticipatory bail. It is also called Apprehension Bail on the basis of
provisions laid down in sec. 438 of cr.P.C.

Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a

person from arrest. A person against whom a warrant of arrest has been
issued shall first be arrested kept in custody for few days and then released
on bail, it means where there is no purpose for the arrest he shall not be
arrested.

When anticipatory Bail would be Accepted:- Section 438(1) says that, “when
any person has reason to believe that he may be arrested on an accusation
of having committed a non-bailable offence, he may apply to the High Court
or court of Session for a direction under this sec.438(1) and court if thinks
it fit, can direct that in event of such arrest he shall be released on bail.”
Case of Gurbaksh Singh v/s State of Punjab-1980, he was not granted
anticipatory bail merely on fear of arrest. In a similar case of Ashok kumar
v/s State of Rajasthan-1980, that anticipatory bail should not accepted until
there is a definite fear of arrest and such fact has come before the court. It
is pertinent to mention here that reason to believe does not mean mere fear,
i.e. mere ‘fear’ is not sufficient cause. Grounds on which belief is based
must be capable of being examined.

1.    Who shall accept the Anticipatory Bail

a. Sec. 438 (1) that the following authorities may accept the anticipatory
bail application: High Court, Court of Session.    

That any accused of an offence and in custody be released on bail on

acceptance of bail application in the above said courts u/s 439 of Cr.P.C.

Conditions of Grant Anticipatory Bail:-Court can impose reasonable

conditions for grant of anticipatory bail. Those conditions have been
mentioned in section 438(2).  When the High Court or Court of Session
make a direction with some conditions in the light of the facts of the
particular case as it may think fit for bail:-

b. That the person shall not leave India without previous permission of the
court.  b)That person directly or indirectly make an inducement threat or
promise to any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the court or to any police
Officer. c. That the person shall make himself available for interrogation by
a police officer as and when required.

                                POWERS OF CRIMINAL
COURTS
INTRODUCTION: – Chapter III of the criminal procedure code deals with the
Powers of Courts to take cognizance of the offences. For this purpose the
offences are divided into two groups, i) Offences under IPC, and ii) offences
under any other law. The courts by which these two offences are triable are
specified below:-

Courts by which these two offences are triable: – As per provisions laid
down in section 26 of the cod, the courts by which offences are triable:-

3.             a) Any offence under IPC-45 may be tried by High Court. B)

Session Court. c) Any other court by which such offence is shown in the
first schedule to be triable.

4.   Any offence under any other law, when any Court is mentioned in this
behalf in such law, is tried by: i) High Court. ii) Any other court by which
such offence is shown in the first schedule.

Section 27: Jurisdiction in the case of Juveniles: Any offence not

punishable with death or imprisonment for life who at the date when he
appears or is brought before court under the age of 16 years may be tried
by the court of CJM or any other court which specially empowered.

Sentences which High Courts and Session Judges may pass: – As per
provision laid down in Sect. 28 of the code that:- (i) High Court may pass
any sentence authorized by law. (ii) Session Judge or ADJ may pass any
sentence authorized by law but any sentence of death passed by such
judges shall be subject to confirmation by the High Court.

Sentences which Magistrates may pass:- Sec.29 of Code, The court of CJM
may pass any sentence authorized by law except sentence of death or of
imprisonment for life or imprisonment for a term exceeding 7 years.

The court of Magistrate of First Class may pass a sentence of

imprisonment for a term not exceeding three years or of fine not exceeding
Rs.10, 000.

The court of 2nd Class Magistrate may pass an imprisonment for a term
not exceeding One year or of fine not exceeding Rs.5000/- or of both. 

Sentence of Imprisonment in default of fine:-The court of Magistrate may

award such term of imprisonment in default of payment of fine as
authorized by law under sec.30 of the code, not exceeding one fourth of the
term of imprisonment and also not excess of the powers.

                               SUMMARY TRIALS
On the basis of provisions under section 260 of the code, power to try
summarily: – notwithstanding anything contained in this code, Any CJM,
Any metropolitan Magistrate or any Magistrate of the first class specially
empowered in this behalf by the High Court, may if thinks fit try a summary
way in all or any of the following offences. Summary trial can also be done
by the magistrate of second class u/s 261 of the code; the High Court may
confer on any magistrate invested with the powers of a Magistrate of the
second class. If any from the above Magistrate’s thinks fit, may try in a
summary way for all or any of the following offences:-

1.   Offences not punishable with death imprisonment for life imprisonment

for a term exceeding two years.

2.   Theft under sec. 379, 380 and 381 of IPC where the value of the
property stolen does not exceed two thousand rupees.

3.   Receiving of retaining of stolen property under sec.411, IPC, where the

value of the property does not exceed two thousand rupees.

4.   Assisting in the concealment or disposal of stolen property under sec.

414 of IPC, where the value of such property does not exceed two thousand
rupees. 5. Offences under section 454 and 455 of IPC.

6. Insult with intent to provoke a breach of the peace under sec. 504 and
with imprisonment for term which may extend to two years or with fine or
with both, under sect. 506 of IPC. 7. Abetment of any of the foregoing
offences. 8. An attempt to commit any of the foregoing offences when such
attempt is an offence.

The mode of trial is sought to be altered under this sub-section the trial
must from its inception to be conducted in the regular manner, case of
State v/s D.N.Patel-1971.  The Magistrate under this section as a discretion
o try the offences specified in this section in a summarily way.

Procedure of summary trials: – Under sec. 262 of the code is related to the
procedure for summary trial, shall be the same as in summons case except
in so far as it is modified by the provisions. In the case of summary trial the
limit of term of sentence of imprisonment is three months. However if the
court is considers it necessary that a longer sentence is necessary in the
interest of justice in any case the trial should be held as in a warrant case or
as a summon case according to the nature of the offence.

                                  PLEA BARGAINING
                Under section 265A of the code, described that the application of
the provisions of this section in respect of accused against whom the
report has been forwarded by the officer in charge of Police station under
sec.173, the offence appears to have been committed by him and the
Magistrate has taken cognizance of an offence on complaint other than an
offence for which the punishment of death or life imprisonment or
imprisonment for a term exceeding seven years and examining
complainant and witnesses issued the process as per law.

Application for plea bargaining: Sec.265B of the code lays that a person
accused of an offence may file application for plea bargaining in the court
in which the offence is pending for trial. The application accompanied by an
affidavit sworn by the accused stating therein that he has voluntarily
preferred after understanding the nature and extent of punishment provided
under the law for the offence the plea bargaining in his case and that he has
not previously been convicted by a court in a case which he had been
charged with the same offence.

FINALITY OF THE JUDGEMENT:- The judgment delivered by the court under

section 265G shall be final and no appeal except the special leave petition
under article 136 and writ petition under article 226 and 227 of the Indian
constitution shall lie in any court against such judgment.

POWER OF THE COURT IN PLE BARGAINING:- A  court shall have for the
purposes of discharging its functions under the provisions in section 265H,
all he powers vested in respect of bail, trial of offences and other matters
relating to the disposal of a case in such court on the basis of above
provisions.                                 
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